A legal Quagmire


Until recently, purported Wet’suwet’en hereditary chiefs, who oversee 22,000 s.q. km of territory in British Columbia, have refused to allow the company Coastal GasLink access to their lands. According to the judgment of Madam Justice Church of the B.C. Supreme Court in the Coastal GasLink Pipeline Ltd. v. Huson, 2019  case that went to her court on the issue of granting an injunction to CoastalGasLink to stop them from blockading access to the land there is significant doubt as to whether or not the elected Chiefs and Councils  have the jurisdiction to decide whether or not the pipeline can be built on Wet’suwet’en land. This is what she said in her judgment in that case:

“The evidence before me indicates significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project, including disagreements amongst the Wet’suwet’en people as to whether traditional hereditary governance protocols have or have not been followed, whether hereditary governance is appropriate for decision-making that impacts the entire Wet’suwet’en nation and the emergence of other groups, such as the Unist’ot’en, which purports to be entitled to enforce Wet’suwet’en law on the authority of Chief Knedebeas and more recently the WMC, which apparently seeks to challenge the authority of the hereditary chiefs to make decisions for the Wet’suwet’en nation as a whole and the manner in which the traditional governance processes have occurred.”

The WCM is Wet’suwet’en Matrilineal Coalition that has 5 board members  representing each of the five Wet’suwet’en clans. Each of the board members is either a hereditary chief or wing chief.

Sadly the case is a mishmash and I have a lot sympathy with the judge in that case who had to sort through the maze of conflicting facts. It really was not an application to the court to determine Aboriginal title. It was rather an application for an injunction which is determined on the basis of affidavit evidence and not evidence at a trial that becomes very difficult (when it is not impossible). The judge does not listen to witnesses, but only reads their written statements in affidavit form. Often there is no cross examination.

One of the major problems with this case is who speaks for the Wet’suwet’en people? The pipeline project has the support of 20 elected First Nation Councils along the proposed route, but the Wet’suwet’en chiefs say the authority of these groups only applies to reservations – not traditional territory.

We have to remember that the Indian Act provides for each recognized First Nation to have a Chief and Council and a reserve.  In return usually the First Nation ceded land to Canada so that Canada could have the ceded land for the development it wanted. In that way, it would have a solid root of title to pass on to European immigrants.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’way Aboriginal title case. I commented on that case earlier in this blog. In that case they provided the court with voluminous detailed historical evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. At least that is the position of the Wet’suwet’en Hereditary Chiefs. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves. In the injunction case Justice Church acknowledged that this was the position of the Hereditary Chiefs but did not say whether or not she agreed with it.

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.

Indigenous peoples hold rights to lands in Canada that extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. But what that actually means in practice is often far from clear, and inevitably, in cases of dispute, requires a court, and often that means ultimately the Supreme Court of Canada, to make a ruling, as it did in the Tsilhqot’in  case that I have  also commented on in this blog. It was another of the landmark cases that went to all the way to the Supreme Court.

The Wet’suwet’en people, like most First Nations in British Columbia,  never entered into a treaty agreement with Canada whereby they disposed of all of all of their territory. As a result they take the position that Canada can’t claim it’s their land unless they have a purchase receipt with the crown. That is consistent with the Royal Proclamation of King George of England in 1763 that really is the basis of Canadian aboriginal law. Only the king (now Canada) could buy land from First Nations and if it did, then that land is owned by the Crown (the government of Canada) who can of course use that as basis for land grants to anyone it chooses, such as immigrants to Canada. Without such an acquisition from the First Nations by the Crown, the origin claims of the original owners must prevail.

I recognize that it is difficult for developers in such circumstances to figure out with whom it must consult. On the other hand, look at the corporate structure of Coastal GasLink and its international partners. That makes the Wet’suwet’en organization look like the simplicity of child’s play in comparison. But it is not enough to say that 20 Chiefs and Council have approved of the project. It is more complicated than that. In fact, it’s a legal quagmire. There is more than one such quagmire in this case.

2 thoughts on “A legal Quagmire

  1. the ukrainian mennonites were of course intimately involved in the occupation of first nation land in western canada when they arrived in 1874.

    so here we are, some 175+ years after “settling” western canada and these land issues are still unresolved, meaning we have had not just social, political, and economic neglect, but also legal neglect. the indian act implied that the reservations constitute/d a kind of un/subconscious out of sight out of mind scenario, thus failing to address the contradiction with the later constitution. after all it is/was just the indians.
    and now it is payback time for all that neglect. you reap what you sow.

    ironically, the fight is occurring around a pipeline designed to deliver a hydrocarbon at a time when the price does not and may not really cover costs and when hydrocarbons are slowly being phased out as a primary fuel. the problem with hydrocarbon development such as the teck mine in alberta is not just the fact that the federales and provinces can’t agree on pollution pricing. there is a secular evolution of decreased demand and consumption. at this very moment the world is awash in hydrocarbons in part because of the mismatch of supply and demand. and the fight between the russians and saudis, with yanqui shale development in the background, only exacerbates this.

  2. This entire case is imbued with ironies. it is indeed deeply ironic that right now so many are urging Canada to leave the carbon in the ground and it may not be viable. As well many Canadians don’t realize that all that natural gas is not going to Canadians at all. It will be send to Asia by huge multinational corporations that are not Canadian either. And Canada will subsidize the production of the natural gas and transport at immense cost while Canada as a result will fail to fulfill its commitments under the Paris climate agreement. What comes next?

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