Many Canadians have been heard to say, the protesters of the pipeline must obey the rule of law. The rule of law is the basis of Canadian society. I agree. But what does that mean? It means everyone–the Indigenous people, white settlers, businesses, must obey the law. Lets not just pick on the Indigenous people. Canada is a country governed by law. That is what the rule of law means.
But this is complex. It is not enough to say that protesters must obey injunctions. Everyone must obey the law, even the majority who control the government of Canada or British Columbia.
To understand the point I want to make you have to look at some very old law–the Royal Proclamation of King George of England in 1763
There was a deep conflict in North America in the 18th century. One big issue was who would control the expansion of European-Americans into Indian Country? The governments of the United States after 1776, and Britain after its victory over France in the Seven Years War that began in 1756 and ended in 1763, jostled over who would get that control.
In 1763 just after the end of the Seven Years War, and before the American Revolution, the British Monarch, King George, issued a Royal Proclamation in which he asserted his absolute claim to exclusive authority to acquire by purchase (not conquest) aboriginal title in the lands that he reserved for Indian peoples as their hunting reserves. That land included most of North America and all the land west of the Mississippi River.
By this proclamation, that is still valid law in Canada, the British sovereign monopolized the exclusive authority to transfer lands from Indigenous people (Indians as he called them) to non-indigenous people. No private deals could be made! By this act, the British crown usurped the right to control and regulate the westward expansion of Anglo-American settlements. Really, the British King said he and he alone had the authority to decide who would own North America. Talk about hubris! However, by this Proclamation, King George also acknowledged that the land in North America (including in 1763 much of what is now the United States) was owned by the original inhabitants and ownership (title) could only be acquired by purchase! And only the crown could buy.
Americans of course, were loath to accept this and it was this proclamation and later taxes imposed on the Americans that led to their revolt against British rule. Indigenous people who had lived on this continent for millennia, never acknowledged that the British King had this authority. But they liked the acknowledgement that no one could acquire ownership of land after that time except the Crown and then only through purchase from indigenous people.
This Royal Proclamation is the basis for English (and later Canadian) authority over much of North America. It really was the basis of law in Canada. The English realized that their claims over North America had a dubious foundation. The Royal Proclamation was intended to make that foundation sound. It was the foundation for empire–the British Empire–in North America.
The United States saw no need for such a basis for their expansion. They were content to rely on conquest. Canada never did that. It really did not do a lot of conquering. It took the position that it was governed by the rule of law. Canada saw how the Americans were spending vast fortunes in its Indian wars and did not want to replicate that here. In one year 25% of the entire American federal government budget was spent on Indian wars.
It is important to recognize that the English government and its laws, which were later assigned to Canada after 1867, deliberately provided that land not purchased by the Crown from Indigenous People belonged to the inhabitants–the indigenous people.
That is still the basis of Canadian law in the wild territories. And this is still important today in understanding issues such as the melee over Wet’suwet’en land and pipelines over it.
Why is this relevant? Because the Wet’suwet’en never ceded their territory except over those 6 parcels of land now included in those 6 First Nation Reserves established as such under the Indian Act. That means that no one has acquired those lands. The original owners, whoever they are, continue to own those lands. With ownership comes the right to say what can and what cannot be done on that land. What gives the Province of British Columbia the right to issue permits for developments, such as pipelines, over that land? What this means is that this is not ancient history; this is law.