The Jurisdiction of Infrastructure: Circulation And Canadian Settler Colonialism



Infrastructure always seems to promise something, and so often it seems as if it is a promise intended to be broken.

AbdouMaliq Simone, “Come On Out, You’re Surrounded,” 2015.

It is only three years after Canada’s Truth & Reconciliation Commission Report (TRC), and the first year after the settler state’s 150th anniversary celebrations. The TRC was marked by moral and political claims to repair relations between Canada and Indigenous people, and by formal and popular commitments to redress the violence perpetrated by this settler state. In 2015, live broadcast of the Commission’s reporting described the years of work invested in archiving stories from thousands of survivors of Canada’s residential school system. It was not the benevolence of the state, but the extraordinary resilience of those survivors and their class action law suit that brought the Commission into existence. While the Canadian state had to be dragged into the process, 2015 was nevertheless a moment of possibility for change. Beyond official state commitments to reconciliation, institutions of all kinds made promises to take up the TRC “Calls to Actions.” Academic, artistic, health and cultural institutions began articulating programmatic responses, and Canadians were invited to take responsibility beyond formal and legislated action.

Just two years later, that sentiment of possibility withers. “Canada 150” — ostensibly a moment to mark history, was instead defined by enforced amnesia. Festivities were awash with the language of reconciliation, but sidelined both historic and ongoing state violence, not least the very act of celebrating the “replacement” of multiple Indigenous jurisdictions with a single colonial one. As the late Secwepemc leader, Art Manuel, made clear, “I do not wish to celebrate Canada stealing our land. That is what Canadians will be celebrating on July 1, the theft of 99.8% of our land, leaving us on reserves that make up only 0.2% of the territories given us by the Creator.” Millions of dollars were spent on ‘150’ balloons and birthday parties, in a gaudy, ghastly celebration of the birth of a colonial formation which had its genesis in genocide.

Between these two moments, these two years, lie promises and practices. Promises of change and renewal collide with practices that reproduce the very colonial relations which all those promises were meant to undermine. What has fatally fractured hope in this moment is, arguably, infrastructure. Indigenous people organized against the “150” birthday festivities, insisting that struggles over pipelines, dams, and drinking water offered a better diagnosis of “Nation to Nation” relations. Drawing attention to the infrastructure that underpins contemporary settler colonialism — water and land protectors expose ties that are long and bind tight. James Wilt writes:

The massive ‘Canada 150’ celebrations of July 1 are finally over, leaving little in their wake but hangovers, a multi-million-dollar price tag and mountains of trash. But for some Indigenous peoples in Canada, the festivities remain a visceral reminder of their continued dispossession from ancestral lands and waters. That’s especially true for those on the frontlines of megaprojects — pipelines, hydro dams, oil and gas wells, liquefied natural gas terminals and mines — that infringe on Indigenous land rights. (“Three Indigenous Perspectives on Canada 150 in the Era of Pipelines, Dams and Mines,” 2017.)

Struggles over energy and extractive infrastructures have been fierce across national space in recent years. From the Site C Dam to the Ring of Fire, to Muskrat Falls and especially the TransMountain Pipeline. As water and land protectors are hauled off from protest sites, we cannot forget the ways in which these infrastructures are always entangled with legal ones. Legal and carceral systems have indeed been at the center of anticolonial struggle for the ways they disproportionately cage Indigenous people and systematically exonerate those who kill them, as with the murder of Coulten Boushie and Tina Fontaine. And yet law is more than a question of overrepresentation in courts and prisons, and cemeteries. It is more than a question of the racialized application or enforcement of a legal system. It is through the claim to jurisdiction that settler states attempt to ‘replace’ established Indigenous legal systems and sovereignties with their own, as Shiri Pasternak has argued. Jurisdiction is the authority to have authority over a particular territory. But jurisdiction is actualized through material infrastructures. In other words, historically and in the present, the construction railroads and pipelines relied upon the settler states’ claims to jurisdiction, but that jurisdiction is also materialized through infrastructure.

What holds then and now together? What are the routinized, systemized and lasting means through which settler colonialism is reproduced? What are the infrastructures of settler colonialism on this land? One urgent answer to this question is seemingly circular: the infrastructures of settler colonialism are in fact, settler colonial infrastructures.

Construction of the Banister Pipeline in Alberta./ Photograph by Jason Woodhead (2012).

Infrastructure’s Jurisdiction ///

We are in a position where we know that this is federal jurisdiction. We’ve been clear. We don’t see a need to refer something to the Supreme Court of Canada when we already know that it’s a federal jurisdiction.” Bill Morneau, Canadian Federal Minister of Infrastructure, April 2018.

Infrastructure has long been essential to the making of settler states, but national states are also a means to achieve infrastructural ends. Today, in April 2018, Canadian Prime Minister Justin Trudeau fights tirelessly to assert national jurisdiction in order to see a planned pipeline to completion. In the face of extraordinary Indigenous resistance to Kinder Morgan’s TransMountain project, and without a trace of the tears that fell for reconciliation, Trudeau asserts over and over that this infrastructure is in “the national interest and it will get built.”

The TransMountain pipeline struggle, billed by some as “Canada’s Standing Rock” has been simmering for some time. Approved in 2016, TransMountain involves a $7.4 billion investment in a new 980-kilometer pipeline parallel to an old existing one, almost tripling capacity for oil companies to ship up to 890,000 barrels of oil per day from Alberta to the west coast of British Columbia (B.C.). The project has been contested since it was first proposed. Indigenous resistance has been fierce and creative with legal and direct action by peoples along the path of the pipeline, and across the continent. The Secwepemc Nation are a particularly significant force, with more than half the length of the pipeline planned to run through their unceded territory. The Secwepemc Women’s Warrior Society has pledged to stop any TransMountain development on their lands. Two B.C. municipalities and the Province of British Columbia have also taken formal action, while environmental, student, and social movements, as well as the province of British Columbia have all mounted direct actions or legal challenges. An extraordinary drama has been unfolding in the struggle between B.C.’s efforts to block the pipeline and
Alberta’s commitment to see it built, involving fiery rhetoric, threats of interprovincial boycotts, and calls for the federal government to assert its jurisdiction from Alberta’s provincial leader. On April 8, 2018, in the face of all this, Kinder Morgan declared it would withdraw all non-essential work, giving Ottawa just seven weeks to ensure the security of the project.

The government and mainstream media have not stopped talking about the jurisdictional struggle between Provincial and Federal governments. They frame the building crisis as a struggle over provincial and federal jurisdiction, and hardly mention what is without a doubt the larger jurisdictional question between the settler state and Indigenous nations whose territories underlie the pipeline’s path. Canada asserts jurisdiction over “national infrastructure” but lands in question were never ceded and are governed by multiple Indigenous jurisdictions.

Construction of the Banister Pipeline in Alberta./ Photo by Jason Woodhead (2012).

In a paper entitled “Jurisdiction and Settler Colonialism: Where do Laws Meet,” Shiri Pasternak outlines how in the context of Canadian legal history, “Indigenous peoples — much like firearms and motor vehicle registrations — have been gradually transformed into objects of jurisdiction rather than subjects in nation-to-nation relationships.” Pasternak follows Audra Simpson and others who interrogate the space of overlapping jurisdiction — where the settler state attempts to impose legal authority upon established Indigenous orders. Jurisdiction is thus a key infrastructure of settler colonialism, and, as Pasternak insists, “to engage in the question of what it means to decolonize law, we must ask by what authority a law has the authority to be invoked and to govern.” Indeed, the mainstream account of the jurisdictional struggle at play with the TransMountain pipeline already assumes that the settler state holds a monopoly on jurisdiction, but it does not account for the foundations of this authority. By making the TransMountain question one of exclusive federal jurisdiction what is elided is not only the authority of authority, but also the work of infrastructure in materializing that self-proclaimed jurisdiction.

The story of a singular settler jurisdiction and a single jurisdictional struggle that unfolds within the settler state is thoroughly inadequate, yet it is also revealing in that it takes us back to the Constitution of the Canadian state, and the time of confederation when these links between infrastructure, jurisdiction and settler colonialism were forged. In 1867, the “fathers of confederation” gathered to sign a document which was understood to birth the Dominion of Canada, but the labor was slow as this Constitution relied on infrastructure to be actualized. Stanley insists in his classic work The Canadians, “Bonds of steel as well as of sentiment were needed to hold the new Confederation together. Without railways there would be and could be no Canada.”

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Construction of a water pipeline from wooden staves in Yukon (1908). Photograph by T.A. Rickard (Public Domain).

Indeed, this infrastructure literally, materially made the Canadian state possible, but in a seemingly circular move, it was also the Constitution that provided the federal government’s jurisdiction in the making of national infrastructure. Delegates from the provinces of Nova Scotia and New Brunswick made the construction of the “Intercolonial rail” a condition of their entry into Confederation. Section X (145) of the Constitution is explicit, explaining that “in order to give effect to that Agreement,” the rail must be complete “with all practicable speed.” Section 92(10a) of the Constitution also specifically asserts national jurisdiction over “Lines of Steam or other Ships, Railways, Roads, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province,” while section 92(10c) extends to “Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada.” Four years later, British Columbia joined confederation, again on the condition of the construction of national rail infrastructure. Because B.C.’s signing of the Constitution was contingent on the completion of the CPR, the genesis of a settler state that spanned coast to coast was only realized by that same infrastructure that was sanctioned by the Constitution.

Then like now, infrastructure was at the center of violent relations of rule, materializing settler colonial jurisdiction. The Canadian Pacific Railroad was famously referred to as “the spine of the nation,” but it was built through colonial dispossession, hyper-exploited racialized labor, and the circulation of finance from the transatlantic slave trade into the iron tracks. By turning to a particular stretch of the tracks we can see how infrastructure assembles settler jurisdiction as it violently trespasses Indigenous jurisdiction.

Locating “National Infrastructure”: Secwepemc Territory ///

In 1885, a different group of white men gathered to drive the last spike into Canadian Confederation. They gathered on the unceded territory of the Sepwepemc people, and staged the famous ceremony announcing the completion of the CPR at Craigellachie. These “engineers” of confederation worked in iron instead of ink, and to this day a small plaque marks the site. Yet it is less than 50 kilometers down the track at the Revelstoke stop where we might linger for a fuller picture of the price of this national infrastructure.

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Ceremonial of the last spike on the Canadian Pacific Railway on November 7, 1885. / Photograph by Alexander Ross (Public Domain).

Like Craigellachie, Revelstoke is also built on the unceded territory of the Secwepemc — the very same people who are vocally and creatively protecting land and water in the current struggle against the TransMountain pipeline. Revelstoke tends to conjure images of ski slopes and luxury lodges, as today the town is a famous alpine resort, yet behind the name is larger and gruesome story of distinct importance. The town was named after Edward Baring, 1st Baron Revelstoke, in honor of his role securing the crucial funding for the CPR with his family’s Barings Bank. The scale and reach of the bank was extraordinary, Barings literally financed empires. London’s oldest merchant bank, Barings’ wealth was derived largely from imperial plunder and the transatlantic slave trade. The Barings’ were active in the East India Company and the Caribbean slave trade. They were key in financing counterrevolutionary efforts in Haiti and they financed the “Louisiana Purchase,” which further dispossessed Indigenous people and opened large lands to the American plantation system. After the British criminalized the trade in enslaved human beings, Barings moved to finance large sections of the U.S. cotton plantation system, becoming the largest importer of American cotton in the 1840s (Sven Beckert, Empire of Cotton, 2015).

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Revelstoke Hydroelectric Dam on the unceded territory of the Secwepemc. / Photograph by Redfisherstudio.

While the Barings are commemorated in the naming of this alpine town, it is on this same treacherous stretch of the rail that more than 700 Chinese laborers died in obscurity. Railway builders in Canada, verging on bankruptcy and facing delay, borrowed labor recruitment and management strategies from the United States and brought as many as 17,000 Chinese laborers to Canada between 1881-84 to build the most treacherous sections of the rail. They were paid a fraction the wages of white workers, purchased their own gear and provisioned themselves in work camps, and dealt with extreme racism from white workers, and media. Immediately after the completion of the railroad, in 1885, Canada imposed a “head tax” on Chinese immigrants, initially set at $50 a person. The tax was later raised to $500 before Chinese immigration was banned in 1923.

Through Revelstoke, so many local and transnational threads of imperial violence are interwoven, but of course it is not just here that national infrastructure did the work of dispossession. To the east in the central plains, Indigenous people were deliberately starved to death or submission, in order to clear the plains for the CPR as James Daschuk has detailed. On both sides of the Medecine Line, the encroaching railroads served as the rationale and the means for genocide through the mass slaughter of the bison. It was also in the prairies that the CPR received an enormous land grant and entered the field of colonial real estate agent, actively recruiting settlers, building model settlements and irrigation systems, and of course selling land under the auspices of the CPR Department of Colonization. With each stretch of the track, from coast to coast, the horrors accumulate. Yet it is on these same Secwepemc lands where struggles over settler colonial infrastructure and jurisdiction unfold today. In the contemporary struggle over the pipeline as with the historical imposition of the rail, Canada’s claim to jurisdiction is founded on colonial replacement enacted through infrastructure.

Infrastructure Beyond “150”? ///

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Kayakers participating in a protest of the Kinder Morgan Pipeline on Burnaby Mountain on October 28, 2017. / Photograph by Adam Melnyk.

“For indigenous peoples, the 150th anniversary of Canada carries little cause for celebration. For us, the history of Canada is one of dispossession, disruption, and coercion. First Peoples have suffered greatly since Confederation, and it is worth asking whether the same will be true of the next 150 years.” — John Burrows

One of the more visible and creative efforts to stop the TransMountain pipeline unfolds in the Secwepemc’s Tiny House Warriors: Our Land is Home. Here, warriors are constructing ten tiny houses and placing them along the pipeline route on their territory, “to assert Secwepemc Law and jurisdiction and block access to this pipeline.” Initiatives like this build on long histories of creative anti-colonial organizing on this same territory. With the struggle against the TransMountain pipeline, we see precisely the refusal of settler colonial infrastructures but also the refusal of settler colonial claims to jurisdiction. Indeed, historical struggles over rail and contemporary struggles over pipelines both suggest that infrastructure and jurisdiction are deeply entangled in the making of settler colonialism. The CPR was a condition of possibility for national jurisdiction in that without the rail, confederation would have been dissolved. But so too, the railroads required “national jurisdiction” that was granted by the Constitution. Today it would seem as though jurisdiction is the condition of possibility for the pipeline, while the pipeline, if built, would enact the settler state’s self-proclaimed jurisdiction.

There is only one way out of this crisis if Canada is going to honor its commitments to reconciliation, to treaties, and to the U.N. Declaration on the Rights of Indigenous people, and this must start with honoring the jurisdiction of sovereign peoples. The outstanding question, as Anishnaabe legal scholar John Burrows articulates so well, is not about where we have been, but about whether the future will be different. If infrastructure underpinned settler colonialism, literally and materially making Canada, a decolonial response might begin by asking what infrastructures can take us beyond “150”?