PERFORMING SOVEREIGNTY IN A TIME OF IDEOLOGICAL INSTABILITY: BC'S BILL 41 AND THE RECEPTION OF UNDRIP INTO CANADIAN LAW.

• Author: Beaton, Ryan

Prelude: reflectionson sovereignty via Friedrich Nietzsche's The Gay Science section 338 (1):

This or that taste, craving, habit has tortured and elevated you with its lights, mysteries, and abominations for a srretch of years, perhaps your whole life.

And all at once, seemingly, it has lost its flavour. Maybe it leaves you cold, or it suddenly seems groresque. Or a light went on and the sight of yourself, your spirit, at some trough has left you nauseous, exposed before yourself seasick.

You may look outwardly calm or despondent, or depressed, disoriented, strange. But who could guess at the economy of inner changes, and of all that may have grown up beneath the surface projects, the patterns of thought, word, and action, the half-formed plans?

Enough--something has turned and a facade has crumbled. In this state you are vulnerable to all manner of quacks, diagnosticians, and even sophisticated, well-meaning healers of all stripes.

What you need most, though, is not a medicalization and Treatment of your ourward despondency and lack of purpose, however pathological the symptoms.

What you need is a simpler inner guide, one that can integrate more fully the parts of you that can be gathered into a sane whole, a life affirmed within its proper limits and from some sense of love, perhaps a new facade that will itself crumble in due course as you, like others, grope towards a vocation of sorts.

[Law] is an institution that remakes its own language and it does this under conditions of regularity and publicity that render the process subject to scrutiny of an extraordinary kind. As an ethical or political matter, then, the structure of the legal process entails remarkable possibilities--little enough realized in the event-for thinking about and achieving that simultaneous affirmation of self and recognition of other that many (I among them) think is the essential task of a discoursing and differing humanity.

James Boyd White, Justice as Translation'

INTRODUCTION

The Canadian state and Canadian law express a desire to shed colonial baggage, to slough off the bundle of ideologies asserting the superiority of European civilization as justification for, among other things, the sovereignty of European crowns--later, settler states--over Indigenous peoples and territories. Clearly, the Canadian state and Canadian law would nonetheless like to salvage and maintain the legitimacy of the state's assertions of sovereignty, while discarding these ideological foundations on which the assertions were originally laid.

Canada is thus faced with the task of reconstituting and re-legitimating state sovereignty in this historical moment of apparent ideological, or at the very least, rhetorical transformation. This task is, in crucial respects, performative. Case law, for instance, continually re-inscribes "sovereignty" within judicial reasons that make "sovereignty" perform various functions. Often, the shades of meaning between majority and dissenting uses of the term seem slight, but lead to opposite legal outcomes. I illustrate these points in discussing two recent cases from the Supreme Court of Canada (SCC) in section 3, below.

Beyond or alongside particular legal outcomes, then, the case law can be read as an ongoing public performance, or contending performances, of sovereignty. One aim and measure of any such performance is that it embody or enact sovereignty in a manner adequate to the situation before the court--a situation that includes not only the particular dispute at hand, but also the current historical context of ideological transformation.

In other words, part of the task the courts--particularly the SCC--are faced with, is to translate the ways that sovereignty functioned within past colonial ideological contexts, into ways that it may function beyond or apart from those colonial webs of meaning. Through the accumulation of judicial decisions in particular cases, together with countless factors beyond the courtrooms, we may ultimately find the courts pursuing this task through relatively conservative translations, significantly transformative performances of sovereignty, or something in between. Better and worse performances are no doubt possible at any point along such a spectrum.

Whether the courts are able to develop satisfactory translations (i.e., are able to perform sovereignty in ways that are convincing and adequate to the current moment) is obviously a contested and open question. The premise of this paper is that examining the work of the courts through the lens of this question will help to shed light on the legal and political context shaping the implementation of British Columbia's Bill 41, formally adopted into law as the Declaration on the Rights of Indigenous Peoples Act upon receiving royal assent on 28 November 2019. A further premise is that we cannot sensibly talk of law as "independent" of politics or think of constitutions as legal structures that contain the business of politics from the outside, as it were. (3) That said, the discourse, norms, and institutions of legal practice place distinct constraints on judicial performance, so it is also distorting to try to "reduce" the work of courts to politics. The judicial work of legal interpretation, particularly constitutional interpretation, is best understood as a distinct practice of expressing and re-constructing the social and political imaginarles of the communities in which the courts are embedded.'*

Below, this paper is divided into four sections. First, I briefly review some structural elements of the United Nations Declaration on the Rights of Indigenous Peoples ( UNDRIP),'' noting UNDRIPs frank dual commitment both to a repudiation of colonial ideology and to upholding state sovereignty. Second, I turn to Bill 41. While its specific provisions do not offer much detail for the actual implementation of UNDRIP, they arguably suggest that British Columbia ("the Province") would prefer to skirt larger questions of sovereignty in favour of pursuing more focused agreements with Indigenous peoples. There may be good reasons for such an approach. However, as highlighted by the recent stand-off between the state and several Wet'suwet en hereditary chiefs and activists (and their supporters across Canada), as well as subsequent negotiations between Canada, the Province, and Wet'suwet'en representatives, broader unresolved issues relating to sovereignty exist and will continue to surface. (6) A commitment to the implementation of UNDRIP seems as promising a context as any in which to begin addressing them more openly. In fairness, the legislative debates on Bill 41 do suggest provincial openness to pursuing agreements with Indigenous peoples that address these larger issues.

Third, I review two recent decisions of the SCC in Uashaunnuat (7) and Nevsun, (8) in which the Court split five to four, with the same five justices in majority and same four in dissent in the two cases. The heart of the disagreement between majority and dissent in these cases revolved around the proper role of domestic courts in relating to non-state legal orders--Indigenous and international, respectively, in these two cases--that arguably impinge on state assertions of sovereignty. In constitutional democracies like Canada, where judges are styled guardians of the constitution, (9) the courts are clearly a major locus for the performance and elaboration of state sovereignty. Uashaunnuat and Nevsun offer contending performances in the context of specific legal disputes; below, I unpack some of the differences between majority and dissent that may have wider repercussions in the evolution of Canadian law. Finally, then, in the fourth section, I note how these contending performances of sovereignty may play out in the context of implementing UNDRIP. Broad judicial debates about sovereignty would seem to be on the agenda for Canadian law for the foreseeable future, and this would seem to be on balance a positive thing.

1. UNDRIP: REPUDIATION OF COLONIAL IDEOLOGY, AFFIRMATION OF STATE SOVEREIGNTY

   Relations between Indigenous peoples and the Canadian state currently seem destined to flare up around the tension inherent in two basic elements of the state s approach. The first element is the state's rhetorical repudiation of the ideological foundations of colonialism, which asserted a hierarchy of civilizations justifying, for instance, European acquisition of sovereignty in the "new world". In Canada, as elsewhere, this rhetorical repudiation of colonial ideology has been expressed through various official means, including the Royal Commission on Aboriginal Peoples, (10) the Truth and Reconciliation Commission, (11) formal apologies issued by federal and provincial governments for past colonial practices and policies, SCC judgments, and indeed through Canada's full endorsement of UNDRIP itself. (12)

   We find a pithy (and relatively non-committal) statement of these ideological foundations in the reasons of Chief Justice Marshall in Johnson v M'Intosh, decided in 1823 by the Supreme Court of the United States and repeatedly relied on by the SCC, which has described the case as "the locus classicus of the principles governing aboriginal title." (13) Chief Justice Marshall explained:

   On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. (14) The second basic element of the state's approach...