By K. Joseph Spears
As anyone involved in the transportation industry knows, the past month has been challenging for Canada’s national transportation network. Rail transportation has come to a standstill for both commercial and passenger traffic in Eastern Canada, as blockades of various railways and port facilities by various First Nations and their supporters arose to support the position taken by a number of Hereditary Chiefs of the Wet’suwet’en Band who have not surrendered their aboriginal right and title to their territory of 22,000 km². The protests were a sign of solidarity in response to actions by the Royal Canadian Mounted Police to enforce an injunction obtained by Coastal GasLink in the British Columbia Supreme Court to create an exclusion zone around the traditional Wet’suwet’en territory to allow construction of a natural gas pipeline to LNG Canada’s liquefaction facilities and export terminal under construction in Kitimat, BC.
LNG Canada’s project is the largest industrial project in Canadian history, and is being built to export liquefied natural gas (LNG) to global markets. The project includes the Coastal GasLink pipeline which is a new pipeline to move natural gas from Northeastern British Columbia to Kitimat. The pipeline took eight years of planning and regulatory approval overseen by British Columbia, and was not subject to federal regulatory oversight. All the necessary provincial government permits were obtained, in addition to widespread support from communities along the proposed line. However, no approvals were obtained from the Hereditary Chiefs of the Wet’suwet’en Band. (Nonetheless, many Hereditary Chiefs do support the Coastal GasLink project). Earlier in 2019, a blockade was set up on the Morice forest service road within the traditional territories of the Wet’suwet’en Band that denied access to Coastal GasLink and its contractors to work on preparations for the commencement pipeline construction. This gave rise to the securing and enforcement of a civil injunction which was sought by Coastal GasLink.
The story is somewhat complicated because all First Nations band councils that were established under the federal Indian Act on reserve lands along the pipeline route support the project, while a number of the Hereditary Chiefs oppose the project. This highlights the dual governance of First Nations in British Columbia.
A recent article by First Nations lawyers Kate Gunn and Bruce McIvor write “By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.’’ (www.firstpeopleslaw.com/index/articles/438.php)
It is important to note that the Indian Act created band councils which have jurisdiction only over the reserve lands, but which do not include the traditional territories. The band councils are creations of statute and have limited powers. The Hereditary Chief governance structure predates Confederation, and operates in parallel with the band councils, and it is the purview of the Hereditary Chiefs to exercise governance over land- use on their traditional territories. The Hereditary Chiefs have been recognized in law as being essentially stewards of the land. Under Aboriginal law, Hereditary Chiefs are given the authority to control activities on their territories. The Chiefs have taken the position that they are responsible for deciding to allow construction of the proposed pipeline. The powers of Hereditary Chiefs have not been recognized by the province of British Columbia in this instance, and have been ignored. The enforcement of the injunction forced the Hereditary Chiefs off their traditional lands which they have a lawful right to be on and govern. Therein lies the nub of the issue.
While established earlier, the legal rights of the Heredity Chiefs were confirmed in a 1997 Supreme Court of Canada decision in Delgamuukw-Gisday’way. This case recognized that the Wet’suwet’en band had the underlying title and rights to their traditional territories that predates Confederation. The Supreme Court of Canada held that the band held.aboriginal title to the lands in question. The Delgamuukw case is important because it provides information about the definition and content of aboriginal title. The ruling also clarified the government’s duty to consult with indigenous peoples, which duty has been expanded since this decision.
A summary of the case prepared by the court in the headnote states: “Aboriginal title is sui generis, and so distinguished from other proprietary interests, and characterized by several dimensions. It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown. Another dimension of aboriginal title is its sources: its recognition by the Royal Proclamation, 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of aboriginal law pre-existing assertion of British sovereignty. Finally, aboriginal title is held communally.”
Gunn and McIvor wrote that in the Delgamuukw ruling, “Ultimately, the Supreme Court refused to issue a declaration in favour of the Wet’suwet’en because of a technicality in the pleadings. The parties were left to either negotiate a resolution or begin a new trial.” The court called on Canada to negotiate the exact terms of this relationship between Canada and the Wet’suwet’en on a nation to nation basis. The court ruling indicated that treaty negotiations under section 35 of the Canadian Charter of Rights and Freedoms should serve as a solid foundation. Treaty negotiations have never taken place with the Wet’suwet’en band, and no consent for the pipeline to cross Wet’suwet’en traditional lands was obtained from its Hereditary Chiefs, which has created the present situation.
Some argue today that, with no Treaty in place, the Heredity Chiefs have no rights over their traditional territory. However, this interpretation runs counter to recognized Aboriginal law.
Rule of Law
The concept of the rule of law indicates that every citizen is to be treated fairly and given equal protection under the law. In other words, no one is above the law. While the rule of law is an easy concept to state, it is a little messier in its application. The rule of law is made up both of statute, convention and judge-made law. Most important, it includes indigenous law as part of Canadian law. In the case under consideration, Canadian law is that in unsurrended or unceded lands without agreement by Treaty, First Nations hold aboriginal right and title over their traditional territories. The Wet’suwet’en lands has never been ceded to the Crown, nor have Wet’suwet’en rights been extinguished by Treaty. While the Crown may hold interest in the land, it is still subject to aboriginal right and title, which allows First Nations to control activities on their land.
Many First Nations and commentators have taken the view that since the Wet’suwet’en lands are unsurrended lands, the Hereditary Chiefs should not have been removed by a civil injunction, and therefore restraint should be exercised in the enforcement of blockades in other locations. It appears that this is because of support for the Hereditary Chiefs who have arguably been treated unlawfully, which violates the concept of reconciliation, if not the rule of law.
The underlying cause of the protests addresses the issue of the Wet’suwet’en claim that they have not had any discussions on a nation to nation basis with respect to the land use in their traditional territories. There are clear statements of the Supreme Court of Canada in the Delgamuukw decision that require nation to nation consultation in addressing the present issue over the Coastal GasLink pipeline. As such, it is my view that Canada, rather than a province, is responsible for negotiating directly with the Hereditary Chiefs. It is not sufficient to simply say that a majority support the pipeline. The approval of the Hereditary Chiefs is needed for the Coastal GasLink pipeline to cross their traditional territory. It is part of Canada’s rule of law.
Reconciliation was defined by the Truth and Reconciliation Commission as “about establishing and maintaining a mutually respectful relationship between aboriginal and non-aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, an acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour.”
The challenge for the government of Canada is to show leadership on this issue. The rule of law requires a discussion with respect to nation to nation discussions about title to the lands. The rule of law requires that Canada recognize the inherent sovereignty of the Hereditary Chiefs of the Wet’suwet’en to act as stewards of their land and territory. “Under international and British law at the time of colonization, unless indigenous peoples were conquered or Treaties made with them, the indigenous interest in their land was to be respected by the law of the European colonizing nation,” historian and lawyer Bruce McIvor explained in the above noted article.
While the trigger point may be the situation in British Columbia, the larger issue is one of reconciliation and creating a meaningful dialogue on how to achieve that, correct past wrongs and recognize First Nations rights in a meaningful way. That is going to take time and serious effort. The problem has been neglected by successive governments over hundreds of years.
The impacts of the blockades are having a real impact on Canada and its economy, as well as its international reputation as a secure supplier of exports. We need to develop a dialogue and mechanism to move reconciliation forward in a meaningful way that does not have lasting impacts on the Canadian economy. In John Ralston Saul’s book, A Fair Country, Telling Truths about Canada the author holds that Canada is a Metis Nation “heavily influenced and shaped by aboriginal ideas: egalitarianism, a proper balance between individual and group, and a penchant for negotiation over violence are all aboriginal values that Canada absorbed.“ The author explains that Canada has had a long history of working with First Nations for over 400 years in various economic ventures in the founding of our country. We need to return to that historical and traditional cooperative approach that recognizes the rights of all parties and work together on economic issues. This will require the blockades to come down in a spirit of cooperation. The blockades have had their effect and brought a national focus to the issue of reconciliation. Reconciliation is hard work and affects all Canadians. Canada needs to get this right: our economic future depends on it.
- Joseph Spears is a retired maritime barrister and transportation consultant. He is a graduate of Dalhousie Law School. At Dalhousie, under contract to the Government of Canada, Joe and others, researched and prepared a major analysis of First Nations and public fishing rights in tidal waters for the Department of Fisheries and Oceans (Canada) under the supervision of Law Professor Bruce WildSmith in 1984-85. Joe can be reached at email@example.com