Policing Jurisdiction

By: Shiri Pasternak, [Toronto Metropolitan University, Canada]

This post is a part of our Keywords for Decolonizing Geography series. It was originally published as part of an article titled “Infrastructure, Jurisdiction, Extractivism: Keywords for decolonizing geographies” in the journal Political Geography.

Jurisdiction offers a rich framework for understanding the terrain of struggle upon which colonial theft is fought in Canada. In my work, I argue that while settler law is asserted as a universal system applied evenly within the boundaries of the nation state, it is in fact a politically and spatially contested claim against Indigenous laws of territorial belonging. The goal of perfecting state sovereignty unfolds then in the struggle over territorial authority on the ground – in the homes, communities, and nations of Indigenous peoples – because colonization within the Anglo settler colonies can only be established through the effective exercise of law.

This contestation over jurisdiction has created deep inconsistencies in the official narratives and jurisprudence regarding Canada’s legitimacy as a successor state. For example, the concept of terra nullius – or “empty lands” – has been repudiated by the Supreme Court as the basis for Crown jurisdiction. But its underpinning and conjoined logic of discovery remains intact – an imperial claim to state sovereignty, based on the principle that the land is “empty” of Christians, that mysteriously trumps Indigenous jurisdiction (Tsilhqot’in Nation v. British Columbia, 2014). So long as the doctrines of discovery remain politically entrenched, state sovereignty is non-justiciable.

One inconsistency of these colonial legalities, however, can be heartily leveraged outside the courts. As my late friend, Secwepemc leader Arthur Manuel, used to say: so long as the courts find the concept of underlying Aboriginal title “uncertain,” Crown land and all private property in the country must be, too. Here we have a particular formulation of the danger of Indigenous jurisdiction to the state: uncertainty over property rights. These “inconsistences” expose a politics of domination that require considerable levels of state violence and criminalization to manage the Indigenous opposition to settler occupation. In response, the state has developed a multitude of risk mitigation strategies aimed not only to undermine Indigenous jurisdiction, but to drive colonial violence through the technique of jurisdiction itself. Jurisdiction is a way of marking categories of power; in naming these categories, it organizes their authority, substantiating its reach. It is not an abstract or descriptive concept of scales or spheres of power, but an active form of production that institutes “a relation to life, place, and event through processes of codification or marking” (Dorsett & McVeigh, 2007, p. 4). Here I want to show how the exercise of jurisdiction diffuses and adapts state power across a wide proliferation of other administrative, corporate, and institutional forms of governance that are otherwise marked as distinct. The construction of infrastructure and the regulation of extraction offer views into how jurisdiction is organized as a colonial tool of risk mitigation.

The Royal Canadian Mounted Police (RCMP) force, for example, is tasked to uphold the peace by enforcing the law in Canada. Yet, the RCMP stage their most violent coordinated attacks and operations against Indigenous peoples protecting their critical infrastructure against resource extraction industries. The jurisdiction of the RCMP to coordinate these operations is based on provincial authorization of private extraction, e.g., permits, licenses, leases. But since the provinces hold a contested property claim, their claims to jurisdiction must be “perfected” through police enforcement to protect the private capital the state regulates. Jurisdiction in each case – that of the province, the police, the company – marks a sphere of power that organizes dispossession, with each category of authority highly dependent on the others to operate.

In Wet’suwet’en territory, where the hereditary leadership has not consented to the construction of the Coastal GasLink pipeline through their lands, the authority of the “Crown” is likewise exercised by police, provincial and federal authorities, corporations, and the criminal justice system, working in conjunction against the exercise of Indigenous jurisdiction. Patricia Owens writes in relation to international war that there is really no such thing as public or private violence: “There is only violence that is made ‘public’ and violence that is made ‘private’” (2010, 8). Likewise, the machinery of jurisdiction in Canada is harmonized in ways that reveal the false distinctions between public and private power.

One key to this pipeline project approval was CGL’s successful motion for injunctive relief to remove the Wet’suwet’en from blockading the project (Coastal GasLink Pipeline Inc, 2019). The injunction was accompanied by the court’s police enforcement order. Underlying the successful motion, the court reasoned that the company endured a greater inconvenience by Wet’suwet’en blockades than the Wet’suwet’en endured by the ecological destruction of their territory. The company’s inconvenience was attributed to financial loss, as well as loss of benefits to the region – jobs, tax revenue, and financial profits. CGL’s financial loss was also considered relevant to the “public interest.” Yet how did private profit become a collective good? As Owens points out, this notion of the “public interest” is tied to a modern notion of the public as space to foster the conditions for the private realm to thrive. On Wet’suwet’en lands, presumption of the “public interest” works to undermine the collective title and interests of the Indigenous nation. The court’s embodiment of deeper ideologies lodged in this modern notion of “public interest” also creates a loophole that skirts the state’s responsibility under domestic, international, and human rights law to respect Indigenous jurisdiction.

Another key to harmonization of public and private interests are 20 private contract agreements negotiated between the pipeline company and Wet’suwet’en band councils. Band councils gain their authority through the Indian Act (1876) and do not, according to the Act, have jurisdiction off reserve. Hereditary or customary governance systems, however, involve tenure systems over the entire territory of an Indigenous nation; it is the hereditary governance system that is contesting the pipeline. For over a decade, the provincial government of British Columbia (BC) negotiated with hereditary chiefs to resolve the Wet’suwet’en land claim through a modem treaty process. However, BC mysteriously ceased recognizing the hereditary government’s authority when the private, confidential deals were signed by the Bands. These 20 deals have radically attenuated recognition of the nation’s broader territorial authority and land base. Therefore, the state and companies have conspired to reconfigure Indigenous jurisdiction through private contract.

One way to think about these public-private practices is through the political economy of capitalism, which socializes risk while privatizing wealth. Nichole Schabus and I argue (Pasternak and Schabus, 2019) that this is the case with the Trans Mountain Pipeline Expansion project, formerly owned by Kinder Morgan, until Canada bailed out the company in 2016. The failure of governments to implement the broader territorial use-based concept of Aboriginal title there, too, on the lands of the Secwepemc, reveals the precarious risk mitigation strategies of the federal government to gain social license for the pipeline through private extraction. The Tiny House Warriors, a Secwepemc group, are currently blockading a site of pipeline construction and facing multiple arrests as a result.

Jurisdiction also organizes colonization through omission, through a constitutional division of violence. Under the British North America Act, 1867, the federal and provincial governments carved out their heads of power. Where both heads share overlapping jurisdiction over the lives of Indigenous peoples, these issues become endlessly deferred or denied as subject to either government’s purvey and fiduciary obligations. To take just one key example, while “Indians and the lands reserved for Indians” falls under section 91(24) of the Constitution Act, 1982, natural resources fall under provincial jurisdiction (section 109). When natural resource extraction impacts Indigenous peoples, a black hole of power opens as if Indigenous law does not exist beneath them both.

One way of thinking about the difference between settler and Indigenous jurisdiction is through Winona LaDuke and Deborah Cowen’s concepts (2020) of Wiindigo versus alimentary infrastructure – death versus life-giving structures. The thick meaning of jurisdiction–its etymological description–means to “speak the law,” so jurisdiction over infrastructure also conveys the issue of lawful governance. What “grounds” these different kinds of claims to authority? I have argued that Indigenous jurisdiction is grounded in an ontology of care, but for the state, it is grounded in an ontology of supply (Pasternak, 2017). Alimentary infrastructure then holds hands beautifully with jurisdiction that is grounded in an ontology of care.

The power to “speak the law” infers a place where this law can be spoken, but also its forms of institutionalization, for example through tenure systems and ceremonies. If the police speak the law and no one listens, what authority does the state have to govern in that place? The police are a lynchpin to the system of colonization, and therefore to the pivot between false distinctions of public and private colonial power. In the struggle to reverse course towards a world of alimentary infrastructure, a hard turn away from policing jurisdiction must also be made towards to a “public interest” rooted in local Indigenous ontologies of care. Police do not simply enforce the law; they help map the Wiindigo route to total annihilation.