Tag Archives: Wet’suwet’en

Aboriginal Title: Tsilhqot’in Nation v. British Columbia


In 2014 in the case of Tsilhqot’in Nation v. British Columbia  the Supreme Court of Canada rendered its decision on one of the most fascinating legal question relating to indigenous people. Who owned the land of Canada when Canada became a country and claimed sovereignty over the land? Who owns that land now that has never been ceded to the government of Canada? Exactly this issue has become important again in the recent case involving Wet’suwet’en First Nation and CoastalGasLink Pipeline.

As the Royal Proclamation of King George said in 1763, only the English Crown could buy land from Indigenous people and it had to purchase the land. It could not acquire it by conquest. In time the government of Canada replaced the English crown. That was why the government of Canada was eager after Confederation in 1867 to enter into treaties with First Nations so that it could establish a solid root of title so that it could in turn grant unchallengeable titles to people immigrating here from Europe. It is a fundamental principle of English common law that no one can transfer a better title than he or she has. All titles are transferred with all defects attached.

Soon after Confederation, Canada started negotiating  with First Nations the numbered Treaties, as they are called, in central Canada and gradually moved west. For example, Treaty No. 1  was negotiated and entered into in August 1871 at Lower Fort Garry. A few of the Canadian communities sharing the obligations and benefits of Treaty No. 1 include: Winnipeg, Brandon, Portage La Prairie, Selkirk, Lundar, Grand Beach, Emerson, Winkler, the holy city of Steinbach, and many more. Treaty No. 3 includes Buffalo Point where we have a cottage. Canada has negotiated treaties with most First Nations in Manitoba. Unfortunately British Columbia does not have many treaties, because development of Canada spread west much faster than the Treaty making process could keep up. As a result much of B.C. is not covered by Treaties, but Indigenous people did live in those areas when Canadians arrived. This has left an awful vacuum in much of the country, particularly in BC. After all it  is more than 150 years since the treaty making process began. That is unfortunate now when companies like CoastalGasLink want to develop. With whom does it make a deal?

For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence to a commercial group on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  Sounds a lot like the Wet’suwet’en case doesn’t it? The federal and provincial governments opposed the Tsilhqot’in title claim. 31 years later, the case ended up in the Supreme Court of Canada. The trial itself lasted a number of years!

In the end, the Supreme Court granted a declaration to the Tsilhqot’in of Aboriginal title over the area requested and granted  a declaration that British Columbia breached its duty to consult that it said was owed to the Tsilhqot’in Nation.

Even though the claimant to aboriginal title has the onus of proving that title, the court held the onus of proof had been discharged in that case. It held that the Tsilhqot’in First Nation had established Aboriginal title to the claimed area at issue.

 The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  The court held that aboriginal title flows from the original occupation by Indigenous people in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be proved by that it that was sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of that appeal, the court must look to the Aboriginal culture and practices, and compare them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  In other words how did people prove ownership in Canada when the west was settled?  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the indigenous group exercised effective control at the time of assertion of European sovereignty or Canadian sovereignty.

While the Tsilhqot’in population was small there was evidence that the parts of the land to which it claimed title were regularly used by the Tsilhqot’in–i.e. there was sufficient occupation to base a claim for aboriginal title (ownership).  The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supported an inference of continuous occupation.  And from the evidence that prior to the assertion of sovereignty by the Canadian government the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, the court concluded that the Tsilhqot’in treated the land as exclusively theirs.   The Supreme Court said it was not necessary for the First Nation to prove there was a specific, intensively occupied areas can support Aboriginal title.  The trial judge had sifted through mountains of evidence to support the claim. The court even acknowledged that some of the evidence was conflicting, but the preponderance of evidence supported the Tsilhqot’in claim.

The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.

Where a claim of aboriginal tittle is asserted by a group of indigenous people, prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups.  This is very important for groups such as the Wet’suwet’en First Nation in its case. Yet, interestingly, these issues were not even considered by the court in the injunction case. Presumably this was because it was “only” an injunction case and not a full fledged hearing to determine the legitimacy of the claim for aboriginal title.

The level of consultation and accommodation required of the government varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

Perhaps the reason the CoastalGasLink was not required to consult was that they were not aware of the assertion of ownership by Wet’suwet’en.

In any event this leaves open the question of whether or not the Wet’suwet’en First Nation owns the land on which the pipeline is proposed. If it does, the government of BC cannot on its own grant valid permits for construction on that land without the consent of the owner.


Delgamuukw v. British Columbia


Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See https://themeanderer.ca/gitxsan

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

Screaming for Law

The issue of the protests over the gas pipeline in or near the traditional territory of the Wet’suwet’en people is extremely complex. It has generated a lot of heat. I am trying my pitiful best to shine a little light on the issues from afar. Not only am I far away physically I have come without most of my books that sadly I had to leave behind. The only way I can do that is to meander through some of he issues looking at them in small bite-sized chunks.

I find it interesting how many people are screaming that they want the rule of law. Screams are rarely the way to support the rule of law. Now I am speaking metaphorically, as I have been ensconced in southern Arizona thousands of kilometres from the scene and the “screaming” I have heard has been from Canadians on social media.

I understand that people are upset. Particularly farmers unable to get their grain and other inventory to markets, or oil sands workers and pipeline workers unable to earn a living and countless Canadians unable to obtain goods they need that were being delivered by rail. I know a lot of important goods are delivered by rail. As a former CN sleeping car porter, I know the Canadian rail system is important to the country. But so is justice.

I understand that a number of indigenous activists and their allies have been arrested, much to the delight of some those people screaming for the rule of law. There were 3 Indigenous women included among those arrested.

According to the Guardian, “Freda Huson, Brenda Michell and Karla Tait were among seven people detained when Royal Canadian Mounted Police officers – backed by helicopters, heavy machinery and dogs – moved in on the remote camp in north-western British Columbia. These are not the customary instruments whereby the rule of law is imposed upon unarmed Canadian citizens. One of the things I have been surprised at  again, is how non-violent protests of Canadian Indigenous people have been over and over again. Yet, it seems, each time the Canadian police come with heavy artillery. Why is that?

Just consider how you would feel if you were at your home if  helicopters landed in front of you and unloaded heavily armed police Swat teams supported by dogs. Call me a sissy but I would be a bit disconcerted. Even if I had been participating in protests contrary to a court ordered injunction, I would have been disconcerted. I guess I am a sissy. Those Wet’suwet’en women are not sissies; that’s for sure.

But I keep thinking, there must be a better way to do this. A Canadian way.

What does “Rule of Law” mean in an indigenous context?

The late Mohawk scholar, Patricia Monture-Angus made an important and relevant statement when she said:

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system, How was all of this delivered? The answer is simple: through the law.”

The reason for this is that Canadian law often–too often–has been strongly Eurocentric. In other words, it has perceived claims of whites as naturally right and indigenous as naturally wrong-headed or ill-advised. Such law is clearly not just law. That is the reason that so many Indigenous people are suspicious of Canadian law. Frequently in the past Canadian law has been used as an instrument of domination over Indigenous people. The Indian Act is one example, Residential schools another. If you belonged to a group that had been repeatedly subjected to such domination you would likely be suspicious too. As a result when many Indigenous People hear that the Prime Minster expects them to respect the rule of law, it is understandable that they would not consider such an admonition in the same spirit as the rest of us might.

The Supreme Court of Canada has recognized, as many Canadians have not, that Canada was never terra nullius (“nobody’s land”) before European colonization.  Yet often this fact is ignored, particularly in dealing with things like unceded land. Unceded land is land that Indigenous people have not conceded belongs to Canada. They have never given up their claims to it. Significant portions of land have been ceded to Canada by treaties or other agreements. Significant portions of land the Wet’suwet’en First Nation has claimed as its traditional territory is unceded. Some of its land was in fact ceded to Canada. As a result 6 Indian Reserves, as they are called in the Indian Act, have been ceded to Canada.

Since the federal government and the Wet’suwet’en  First Nation have not come to agreement about their land claims, it is an unresolved land claim. It may or not be held to be valid. It is unresolved land claims that pose great problems for resource development in Canada. Unfortunately, those claims can take decades (or even centuries!) to be resolved. Often it seems to me there is no great pressure exerted on the federal government to conclude agreements with First Nations until a potential development, such as a pipeline, logging  enterprise or golf course, is proposed that would impact their land claim. Then it becomes urgent. I really wish people like farmers, pipeline workers, retired lawyers, and others pressed the government to resolve these claims rather than wait for the next crisis. Pressures of urgent developments are never helpful. It would be much better if such agreements were negotiated in advance of development with good faith and diligence. Then it could be done quietly, thoughtfully, without undue pressure.

in this case the pipeline company Coastal GasLink Pipeline Ltd obtained an injunction against the Wet’suwet’en people not to interfere with the construction of their  pipeline and they claim that injunction has not been followed. An injunction is a court order requiring someone, such as Wet’suwet’en First Nation  to do something or, more often, refrain from doing something. A recent study from the Yellowhead Institute at Ryerson University found that when Canadian courts issue injunctions they do so overwhelmingly in favor of corporations against Indigenous claims.  76% of injunction applications filed by corporations were granted while more than 80% of injunction applications applied for by First Nations were refused. Why is that? This pattern is perpetuated with the repeated issuance of injunctions – enforced with violence and threat of lethal force by the RCMP – against the Wet’suwet’en working against the Coastal GasLink project, authorized without the consent of the hereditary chiefs vested with jurisdiction over the decision. We have to be careful with such stats. By themselves they prove nothing. But they are interesting, and they impact what First Nations think about the Canadian judicial system.

As a result it is perhaps not so surprising that Wet’suwet’en people don’t have quite the reverence for judicial injunctions orders that other Canadians have. That doesn’t necessarily make it right, but it does make it understanding.