What will it take to resolve BC Pipeline dispute?

The rule of law is an important consideration in this dispute. Has Canada complied with its own legal requirements? That’s a question that has largely been ignored in the issuance of injunctions in disputes such as this. Canada’s obligation to resolve this jurisdictional dispute is clear from the case law, but it has failed to do so, mainly because it has declined to negotiate. Injunctions are supposed to be issued only to those “with clean hands” and Canada would likely fail on that point.

The argument that Chiefs and Band Councils along the route, may have signed Benefit Agreements can hardly be said to be proper consent, for I have seen some of them. They do not ask for consent, so much as promise payment for silence. But even if one argues the point, the failure to recognize the traditional law of the Wetsu’wetun is a fatal flaw to that argument. Courts have recognized that traditional Chiefs have an overall say over unceded territory.

Let’s say the United States wanted to run a pipeline from Alaska to Texas and got the BC Government to sign off, through promises of jobs and financial payments. Could Canada not rightfully say: “You need our consent too”? Such is the nature of the role of traditional chiefs.

How to resolve this is the issue. It seems clear that it will take more than words and promises, for history fails Canada on that point. I am reminded of a thought I once had when analyzing the treatment of treaties by governments and in the courts. Indigenous people must feel the way that Paul Simon expressed in his song “The Boxer”:
“I am just a poor boy though my story’s seldom told
I have squandered my resistance for a pocketful of mumbles,
Such are promises,..”

I have said in the past that, if ramped up, Indigenous resistance could paralyze the economy of this country. That resistance will not respond well to court injunctions or more “pockets full of mumbles”. Positive acts of resolution will be needed. Police and military enforcement will only serve to inflame matters.

Frankly, given Canada’s intransigence, and the rising sense of injustice felt by Indigenous leadership throughout the country, I do not like where this is heading.


Posted in Musings | 6 Comments


If there is anything worth remembering
I forget what it is
I live in the moment
wasting it
for a future
that will likely never be
at least,
not the one
I want.
So, instead,
I suck my thumb
while my brain extemporizes,
about many things.
It’s a nice thumb.

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Using Police to Belittle Indigenous Rights

I have been giving some thought to the conflicts that arise whenever pipeline expansion or developments occur in a manner that affects Indigenous people and their territories.

One of the major issues centers on the use of police forces to enforce court orders.

The police decision to view Indigenous resistance to corporate encroachment on their lands, especially in the face of court orders, as acts of terrorism, almost automatically results in a decision by police to see the need to take military-type action to overcome Indigenous protests. Such a heavy handed approach violates the need for this country to come to terms with its historical ignorance of and attitude toward the territorial rights of Indigenous peoples that stem from the racist doctrines of discovery and terra nullius. 

Such police tactics seem to enjoy a measure of acceptability on the basis that the public are told that people are wrongfully disobeying a court order and should not be allowed to get away with it. Yet even when there is no such order and there is such police behaviour, the level of public denunciation seems muted. Case in point include the police tactics during the G20  Summit in Toronto in 2010. 

Legal education is still weak in the area of conflict over Indigenous rights. Courts still see pipeline expansion and corporate development in Indigenous territory as a property issue and not a question of sovereignty, often because that is the way it is originally presented to the courts by corporate lawyers seeking interim injunctions. Judges are either incapable of, or unwilling to, say, “Just hold on here, what about the sovereign rights of the Indigenous people over whose lands you want to do this?”  No one brought such an application before me when I was a judge (we didn’t get a lot of them in Manitoba) but if they had, I would have asked that question.

Indigenous land sovereignty is a term you rarely heard in law school when I attended in the 70s, and that continues today. What’s even more concerning is that it is not discussed in law schools or legal circles as one of the major unresolved legal issues of the day, and on what basis it might be or should be resolved. When it is discussed in courts, generally, it suffers from a weak grasp of the theoretical basis for Indigenous rights as sovereign rights and lapses into an argument over property. We still have a long way to go.

The Royal Proclamation of 1763 recognizes the sovereign and territorial rights of Indigenous people including the right not be disturbed therein or to lose those rights without consent. Courts have been reluctant to see the Proclamation as being protective of Indigenous territory where treaties do not exist and rights have not been ceded. Yet the Royal Proclamation remains as a part of the Constitution of this country. It stands alone and is not part of the “existing” limitation found in Section 35 of the Constitution Act 1982. The Federal Government’s enhanced power position and fiduciary responsibility requires it to defend those principles. I am personally disturbed at the state’s willingness to use police to enforce the property rights of corporations against the unceded sovereign rights of Indigenous people, even in the face of a court order.

They should be telling those police forces to turn around and face the other way and stand on guard to protect the rights it promised to respect.


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As a society, have we developed such a dependence on petroleum and gas products, that we are creating the circumstances of our own demise? There are profitable domestic markets for the oil and gas the industry ships, that is clear. But what is the need? Is the need real, or is it manufactured? Is it merely assumed or even known?

I have never known of an instance where a protest has been stopped by a court injunction, where an industry has been asked to justify a request for an injunction based by proving a measured or measurable public need. Public need and, therefore public interest, is almost assumed. Protest is always portrayed, even in the media, as contrary to that interest. Protest is never portrayed publicly as in the public interest, often because all the figures of public protection are lined up against the protest.

The American War of Independence, which resulted in the creation of the USA in 1776, was brought about because of popular protest against the enactment of the highly unpopular Royal Proclamation of 1763 which prevented land exploitation in the West. Remember the Boston Tea Party, where American protesters dressed up as Indians as part of their protest? I always wondered why they did that. While it was clearly to deflect blame if they failed in their protest, it was also to suggest that the owners of the land – the Indians – didn’t like the RP either, and wanted to sell their land to the developers. Protest has a place and should not be easily stifled.

Be that as it may, until oil and gas market demands or needs diminish, oil and gas exploration and exploitation and shipments will continue, by rail, pipeline, truck and ship, threatening the environment and our communities.

Controlling mineral exploitation and reducing the demand and/or the supply would seem to be the key, but are they even possible? Are we addicted to such products so much that the thought of reducing their availability by reducing their removal from the earth can easily cause anxiety within us to rise, much like the fear and panic an addict feels when told his cocaine has gone missing or his supply will dry up?

We may not think so, but when we are warned that we will lose the ability to heat our homes, or drive our cars, or feed our children, will we be able to think clearly enough to say, ‘if so, find a solution that will not destroy the earth’? I wonder.


Posted on by Senator Murray Sinclair (retired) | Leave a comment

Calling on Catholic Bishops to invite the Pope to apologize to IRS survivors.

This is my speech in the Senate on Senator Mary-Jane McCallum’s motion:

“Motion to Call On the Canadian Conference of Catholic Bishops—Debate Continued

On the Order:
Resuming debate on the motion of the Honourable Senator McCallum, seconded by the Honourable Senator Coyle:
That the Senate call on the Canadian Conference of Catholic Bishops to:
(a)invite Pope Francis to Canada to apologize on behalf of the Catholic Church to Indigenous people for the church’s role in the residential school system, as outlined in Call to Action 58 of the Truth and Reconciliation Commission report;
(b)to respect its moral obligation and the spirit of the 2006 Indian Residential Schools Settlement Agreement and resume the best efforts to raise the full amount of the agreed upon funds; and
(c)to make a consistent and sustained effort to turn over the relevant documents when called upon by survivors of residential schools, their families, and scholars working to understand the full scope of the horrors of the residential school system in the interest of truth and reconciliation.
Hon. Murray Sinclair: Honourable senators, I’m rising to speak to Motion No. 325 which calls upon the Conference of Catholic Bishops to do three things: first of all, to invite Pope Francis to Canada to apologize on behalf of the Catholic Church to Indigenous peoples for the church’s role in the residential school system; two, to ask the Conference of Catholic Bishops and the Catholic Church to respect their moral obligation and the spirit of the 2006 Indian Residential Schools Settlement Agreement and resume best efforts to raise the full amount of the agreed-upon funds to which it committed in the agreement; and, three, to make a consistent and sustained effort to turn over the relevant documents when called upon by survivors of residential schools, their families, and scholars working to understand the full scope of the horrors of the residential school system in the interests of truth and reconciliation.
As a backgrounder, let me start with a quote attributed to Archbishop Desmond Tutu who was the Chair of South Africa’s Truth and Reconciliation Commission. He said in one of his public speeches when addressing a gathering of church congregations:
When you came to this land, we had the land and you had the Bible. You held out your hand and asked us to close our eyes as you prayed. When we opened our eyes, you had the land and we had the Bible.
The residential school system is one of the darkest, most troubling chapters in our collective history. It takes incredible strength to share what happened in those institutions because the students were told never to talk about it and that no one would believe them if they did. For many, it took generations to break this “no talking” rule, and now it is our responsibility to honour their courage with meaningful action.
I want to begin by acknowledging and thanking Senator McCallum for her leadership and courage in sharing with this chamber her personal experience at the Guy Hill Indian Residential School. It is of great historical significance that this motion is brought forward in the very place that passed laws that gave life to the residential school system by a senator who was directly impacted by decisions made here.
An Hon. Senator: Hear, hear.
Senator Sinclair: Nearly two thirds of the residential schools operating all across Western Canada were run by the Catholic Church. It administered 54 of the 139 schools covered in the Indian Residential Schools Settlement Agreement, plus numerous other day schools. The Catholic Church, however, is the only party to the settlement agreement that has not formally apologized for its role in what occurred within that system. The Anglican Church of Canada, the United Church in Canada, the Presbyterian Church in Canada, have all issued formal apologies for their participation in the schools and for their efforts at forced assimilation and indoctrination of the children who were taken there.
Let me begin by asking you to consider the question of why apologies are important. In this day and age, those of us who are experiencing situations of strife, common situations in our families, when we recognize that we have been harmed, hurt or offended by another, we always look for an apology in order to be able to get on with the relationship that we had. Apologies are important to ongoing relationships.
In 2005, the United Nations General Assembly adopted a set of basic principles on reparations, stating that apologies should be made publicly and that they should constitute “an acknowledgment of the facts and an acceptance of responsibility.” They are one of the first mechanisms to address human rights abuses and are intended to help transform inter-group relationships by marking an endpoint to a history of wrongdoing and to provide a means to move beyond that history.
The apology issued by Prime Minister Stephen Harper in 2008 in the House of Commons to those who were gathered, plus representatives of the survivor community, was one of the most important and significant gestures made to the survivors in Canada at that time. It led to a considerable effort on their part to contribute to reconciliation as witnessed by those events that occurred during the work of the TRC.
Apologies themselves cannot remove or undo the pain or loss suffered by survivors and victims’ families, but they can be a meaningful way of recognizing the dignity of victims. They are an important step for a society working towards reconciliation.
In 2015, the International Center for Transitional Justice released a report on apologies and reparations for countries and groups taking steps to address human rights violations. According to that report, apologies can become statements of truth that reverse years of silence or official denial, vindicating the experiences and suffering of victims. They can also mobilize the rest of society to support reparations for victims and help the public understand the need for transitional justice measures, such as a truth commission or putting perpetrators on trial.
Apologies are one of what I call the four big ‘A’s that are part of the reconciliation process. The first is awareness. The second is acknowledgment. The third is apology. The fourth is atonement. Despite the fact that apologies can signal the intent to move towards repairing relationships, it is vital also to recognize that, on their own, they cannot achieve reconciliation, justice or civic trust.

Societal empathy for victims of abuse in residential schools is important. However, this alone will not prevent similar acts of violence from recurring in new institutional forms.
Words of apology will ring hollow if actions fail to produce the necessary social, cultural, political and economic change that benefits Indigenous peoples and all Canadians.
Papal apologies have been issued elsewhere around the world, and the question arises as to whether the circumstances in which they have been given are relevant.
Three papal apologies have been issued for similar accounts of clerical sexual abuse involving children and colonialism as experienced by Indigenous people in Canada.
One was provided, for example, in 2001 for Church-backed “Stolen Generations” boarding schools for Aboriginal children in Australia, and, in that same year, the church issued an apology in China for the behaviour of Catholic missionaries in colonial times.
A third apology, which is of significance and is referenced in the work of the Truth and Reconciliation Commission’s final report, was issued to Ireland in 2010 to women and children who went to Catholic-run schools.
During a public mass of pardons in 2000, a broad blanket apology was expressed by the Church for the sins of Catholics throughout the ages for violating the rights and ethnic groups of peoples and for showing contempt for their cultures and religious traditions.
Why are those other apologies not good enough, you might ask. While former Pope Benedict XVI made an expression of sorrow for residential schools in 2009, survivors said that did not go far enough when they came to testify before the Truth and Reconciliation Commission of Canada.
They told the commission that they needed to hear government and church officials admit that the cultural, spiritual, emotional, physical and sexual abuse that they suffered in the schools was wrong and should never have happened.
I was told by many survivors during the work that I was participating in that they came to see themselves as the problem, and they believed that embracing their culture and language would condemn them to hell. The work of the TRC and the calls to action were meant to serve as a means to deconstruct that lie because we know for a fact that within the walls of those schools, children were faced with determined efforts to devalue and, ultimately, eradicate their languages, cultures and spirituality.
One of the tragic effects of these measures was that children frequently emerged from the schools with a sense of being caught between two cultures, neither fully at home nor fully accepted in either, and profoundly alienated as a result.
Experts have told us that words of apology alone are insufficient, that concrete actions on both symbolic and material fronts are required. Reparations for human rights abuses and historical injustices must include an apology, financial redress and public education as were committed to in the residential schools settlement agreement.
With this motion, the Pope, as the head of the Catholic Church, has an opportunity to chart a new course in its history, one based upon truth, responsibility and reconciliation to Indigenous peoples in Canada.
I have visited many church congregations across this country and addressed them about the work of the TRC, and many of the people at the community level participating in their congregational efforts have acknowledged the importance of hearing an apology on behalf of their faith.
I encourage the council of Catholic bishops and the Pope to come to Canada and speak directly to survivors to let them know that they were not in the wrong. Thank you.
Hon. Terry M. Mercer (Acting Leader of the Senate Liberals): Senator Sinclair, as a practising Catholic of 72 years, I want to apologize. That’s all I can do myself. But I also want to say publicly how ashamed I am of my church. I’ve been an active Catholic. A long time ago I was a choir boy. My faith has been important in my life. At one time, I would be at mass every day for a long time. I don’t do that anymore, but I still practice my faith at least once a week.
I am ashamed of my church. I am ashamed of the people who run my church. I am ashamed of the Catholics who have allowed the church to do this. I am ashamed of all of us because the sins that were perpetrated upon Aboriginal people in this country, particularly the Aboriginal youth, did not happen in isolation. People knew. People had to know. People were in that community. It’s a shame that they did this.
I should say that I am also ashamed of the management of the Catholic Church in this city; I’m ashamed of the management of the Catholic Church in my own province; I’m ashamed of the management of the Catholic Church in this city because they’re not doing meeting their obligation of reconciliation.
It is a very difficult thing. My mother was a Catholic. My father was an Anglican. The church was very important in our family. My mother was active in the church. My brothers were altar boys when they were younger. God wouldn’t recognize them now.
It is a shame for those of us who are Catholics that every day when we listen to the debates on this subject or hear the news on this subject that we share the guilt, because it’s our faith. Every Sunday when I walk through the doors of whatever Catholic Church I go to, I always ask myself: Why do I keep doing this? Why do I keep going to a church that I’m not proud of? Why do I keep doing that?
I don’t go to the church because of the church but because of my relationship with my God, but it is embarrassing. Someday, if I ever get to meet God face to face, I’m going to ask him how he can allow those people to do that to those young children and how he could allow his church, my church, to do such a terrible job in reconciliation with them in this country.”

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As we grow old

As we grow old
the ground we walk on
rises up
so that,
as each of those few moments
left to us
pass by
and we grow old
and hair turns greyer still
we move a bit more slowly.
At such a speed,
we can see around us
more of life today
and feel we understand 
the present 
for we have lived
among the weeds
and trees,
from which it came.
And we have much we want
and need
to say.
But, sometimes,
no one asks
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Systemic Discrimination

Systemic racism is the racist effect that arises from bias built into the structure of a system. It’s the rules, policies and practices of a system that create such bias. In such a system, if you were able to get rid of all of the racists within it, you would continue to have a negative impact on a racialized group.

In the justice system, for example, we emphasize the importance of having a place to live in order to get bail, but if you’re homeless, or move from relative to relative, the easy conclusion is that you have no fixed address, and therefore have few ties to the community, and will be difficult to find if you miss court.

You will more likely be kept in custody pending trial, and therefore more likely to plead guilty to a criminal charge (even if you didn’t do it), and develop a criminal record early on in life, which will result in your being denied bail or being sentenced to incarceration more easily in the future.

The result…higher incarceration rates for the group to which you belong.

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On Growing Old

At a certain point
the water deepens,
the ground beneath
begins to shift,
the earth becomes invisible
each step becomes an unknown risk.
You can become afraid to move,
You cannot leave a game unwon
important things remain for you.
… just get them done.


Posted in Uncategorized | 3 Comments


Today I grieve for my country.
I grieve for a family
that has not yet seen justice
from the moment a handgunned farmer
pulled the trigger and killed their son.
(why does a farmer need such a gun?)

I grieve for a mother
who saw the police
arrive at her house as though on a raid
and treat her like a criminal
and not like the victim she really was.

I grieve for those mothers
with empty arms
who think of their loss
at the hands of such others.
and the lack of the answers
that haunt them still.

I grieve for the youth
who now see no hope,
and whose hunger for justice
gives rise to an anger
that more and more turns
from a dangling rope
to a violence directed at them.

I grieve for the children
whose lives have embraced
an unwanted, dangerous, jeopardy.

I grieve for the elders
who’ve seen this before.
And whose wisdom will not be enough
to get all of us through this evenly.

I may grieve for some time to come.

But then to be true…
we have all been in grieving a very long time.
So long, it is part of our DNA

And so, this is why
No matter how hard we might try
we can’t “just get over it and move on”.
We all can easily say:
“My country won’t let me.”

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Love Sucks

A Note
to my angry, broken-hearted Niece,
because she thinks love sucks.

Love sucks?
Why, yes it does, when it goes wrong
It hurts and makes you cry.
It fills you with despair and hate
and makes you wanna die.
It brings you to your knees
and makes you wonder why
you even try.
And it will drive you mad.

It will cause you to believe
you should stay out of love
and you’re never gonna let
that stupid feeling get into your life again.

Until it does.

It does… because the moment that you catch the eye
of someone special looking sideways
as you’re looking sideways too
the memory of pain will disappear.
As your heart begins to flutter
and your throat gets tighter too
and your palms begin to cool with sweat
and your tongue becomes all knotted
and speaks gibberish despite the fact,
you know just what you wanna say
but there’s this foolish little giggle
that keeps gettin’ in the way.

You try to push those feelings down,
But it makes no difference how you frown
‘Cause it won’t matter how you sound
you know inside you’re going down
’cause love will stick you in the ground.
And as your cheeks begin to flush
with warmth from who the hell knows where,
you’ll find that you’re in love again
despite the painful past despair,
You’ll breathe the purest air of airs
and every song you know, you’ll share
You’ll feel so kind and sweet and fair
You’ll smell each smell, you’ll see each hair
As time stands still.

But here’s a tiny secret truth,
escaping adults and the youth:
to keep that happy love alive
you have to feed it, make it thrive
just as it feeds and cares for you,
you have to give it something too.

That means that you must learn each day,
with things you do and words you say
just how to make that other
fall in love with you again.
For if you don’t,
or can’t
or won’t,
each day will be a sinking stone,
and, sure as hell,
for each of you

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