A ReconciliACTION YEG Long Read
Tansi Nîtôtemtik,
Last week, while the lower mainland of British Columbia struggled to respond to devastating flooding caused by the climate crisis, BC sent 50 heavily-armed RCMP officers to Wet’suwet’en territory to tear down a peaceful blockade. The Wet’suwet’en people set up this blockade to protest the construction of the Coastal GasLink pipeline on their lands, a pipeline that starts near Dawson Creek and moves through unceded Wet’suwet’en territory into Kitimat.
Despite a 2020 memorandum of understanding between Canada, BC and the Wet’suwet’en that recognized Wet’suwet’en title to their traditional territories and ended the 2019 blockades, negotiations related to the future of the Coastal GasLink project have stalled. Coastal GasLink wants access to Wet’suwet’en lands to continue construction and has a court order to force the protesters to stand down.
This post reviews the legal background and history of the blockades leading up to the current conflict, and explores what this means for the rule of law in Canada through the lens of two legal philosophies: rule of law by the most powerful, and rule of law by systems of fairness.
Photo: Yintah Film LTD
Legal Background
The heart of this matter lies in the legal fiction that the Crown unilaterally asserted its sovereignty over Wet’suwet’en lands despite having never conquered the Wet’suwet’en People nor obtained their consent. The Wet’suwet’en People never ceded its land or jurisdiction to the Crown.
To reconcile this legal fiction, section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal rights,[1] which includes Aboriginal Title.[2] Aboriginal Title recognizes the right of an Indigenous community to occupy and possess the land but allows the Crown to retain underlying title.[3]
In Delgamuukw, the Wet’suwet’en and neighboring First Nations sought to legally establish Aboriginal Title over their traditional territories.[4] The Court did not make a decision on the Wet’suwet’en’s claim to Aboriginal Title and instead sent the case back to a trial court to apply the newly-established legal test.[5] It was not until May 2020, in response to the 2019 protests, that the governments of Canada and BC recognized Wet’suwet’en title to 22,000 square kilometers of their traditional territories.[6] But Delgamuukw was not all for naught. It set the foundation for the SCC’s decision in Haida Nation[7] which articulates the duty to consult doctrine.
The duty to consult doctrine provides that, when the Crown knows there is a potential claim for Aboriginal or treaty rights (including title), and it contemplates a decision or action that might affect those rights, it is obliged to consult, and if appropriate accommodate, the affected rights holders.[8] Further, the United Nations Declaration on the Rights of Indigenous Peoples,[9] which was adopted by the federal and BC governments,[10] requires that the Crown obtain “free, prior and informed consent”.[11] The Coastal GasLink project would infringe Aboriginal rights on Wet’suwet’en lands, so the Crown was obliged to consult before approving the pipeline. But with whom must the Crown consult? Who must provide consent?
The Wet’suwet’en People are traditionally governed by hereditary Chiefs, most of whom who oppose the pipelines.[12] But the elected Chiefs, who hold positions under the Indian Act,[13] provided their consent on the Wet’suwet’en People’s behalf. The question then becomes, who has the legitimacy to speak on behalf of the Wet’suwet’en People? This should not be a matter for the Crown to decide; it is for the Wet’suwet’en People.
As an aside, even if the Crown carries out its obligations under the duty to consult doctrine and does not obtain consent, it may still infringe Aboriginal and treaty rights. Legally, Aboriginal and treaty rights are not subject to section 1 of the Constitution Act, 1982, which enables the Crown to impose reasonable limits on Charter rights if it shows that it is justified in doing so.[14] However, the SCC in Sparrow found that Aboriginal and treaty rights are not absolute.[15] It established a common law rule that allows the Crown to limit or infringe an Aboriginal right “if justified” by the Crown.[16] However, the courts have not yet determined how the Sparrowtest for infringement applies when Aboriginal Title exists.
History of the Blockades
The Crown accepted the elected Chiefs’ consent even though a significant portion of the Wet’suwet’en People did not recognize the elected Chiefs’ authority to speak on their behalf. Having obtained “consent”, the Crown exercised its underlying title to unceded Wet’suwet’en lands and issued permits for Coastal GasLink to start construction on those lands. In December 2018, Wet’suwet’en activists blocked Coastal GasLink’s access to their lands in protest.
That month, Coastal GasLink obtained a temporary injunction to force Wet’suwet’en protesters to grant the pipeline company access to the lands authorized under permit.[17] Soon after, the RCMP deployed to Wet’suwet’en lands to forcibly remove the protester’s checkpoint.[18] This conflict ended in the 2020 memorandum of understanding that recognizes Wet’suwet’en title to their traditional lands and promises to negotiate an agreement on the future of the Coastal GasLine project.[19]
Two weeks ago, discussions fell apart and the Wet’suwet’en ordered Coastal GasLink workers to leave Wet’suwet’en lands and they set up barricades blocking their return.[20] The 2019 injunction and enforcement order remain in place.[21] Last week a heavily-armed RCMP force deployed to Wet’suwet’en territory to enforce this injunction and arrested a number of protesters.[22]
The Wet’suwet’en protesters vehemently object to the validity of this consent and the erasure of hereditary leadership. They recognize Wet’suwet’en jurisdiction over their lands and state that the RCMP “are trespassing, violating human rights, violating Indigenous rights and, most importantly, they are violating Wet’suwet’en law.”[23]
“Rule of law by the most powerful”
Some people argue that these blockades violate the rule of law because they are in direct violation of state law and the court injunction. But what does the rule of law actually mean?
Some legal philosophers understand law as a compulsory set of rules created by a sovereign legislator that has the power of enforcement, and that the law is interpreted by drawing from custom and tradition.[24]According to this approach, Canadian Parliament and provincial Legislatures — not Indigenous Peoples[25]— create the rules, the courts interpret the rules, and the police enforce the rules. There are three big problems with this approach:
Law-Making by the Powerful. Parliament and provincial Legislatures are established based on colonial systems and minority groups are rarely represented in positions of power. This framework enables the most powerful to oppress the less powerful. The majority may enact unfair laws and establish systems that serve their purposes. Opposition and alternative viewpoints are often suppressed in the name of upholding the “rule of law”.
Colonial Legal Systems. Canadian legal systems and jurisprudence are rooted in British, and to a lesser degree French, legal traditions. Courts base their decisions on legal principles and precedence that are rooted in colonial traditions and often fail to consider or understand Indigenous legal traditions. Not only does this suppress Indigenous legal traditions, but it fails to recognize the importance of hereditary Chiefs and land stewardship in Wet’suwet’en society.
Power of Enforcement. Strict adherence to the letter of unfair laws creates a tension whereby anyone who dissents is labelled as a trouble-maker and those who are tasked to uphold the “rule of law” feel morally justified to use broad and often harmful means to do so. Under this framework the Wet’suwet’en protesters are immediately vilified for not upholding the unfair system, laws and court decisions. The police are empowered to use force and the threat of deadly force to quell Wet’suwet’en dissent.
When people say that the Wet’suwet’en protesters are violating the rule of law, this — or something like this — is probably the legal framework they have in mind.
“Rule of law by systems of fairness”
Other legal philosophers understand the rule of law as a system of procedures that require us to engage with written laws, to understand and respond to how those laws affect the people they purport to command.[26]According to this approach, Canadian Parliament and Legislatures enact laws and the rule of law dictates a process for applying and enforcing those laws. This process is guided by a number of principles, including an opportunity for those affected to interrogate or challenge how those laws are being applied. By exposing laws to scrutiny, the “arc of the moral universe … bends towards justice,” or so the adage goes.
For the Wet’suwet’en, the Canadian legal system failed to provide a sufficient platform to interrogate and challenge how the laws were being applied.
Injunction Process. The injunction process is weighted in favour of industrial development and against Indigenous interests. An injunction is a court order that obliges one party to do or stop doing something in order to protect the other party’s rights, and are often temporary until lengthy court proceedings render a decision on the merits of the case. When a court hears a request for injunction where Indigenous interests are pitted against Crown-authorized corporate development, it is more likely to decide in favour of the developer. This is a systemic issue based on the legal test for injunctions, which assumes that private actors like Indigenous claimants are acting in their own interest while decisions made by the Crown are assumed to be in the public interest.[27] Canadian courts are loathe to impose injunctions against development projects because they are approved by the Crown and are assumed to be in the public interest. Further, courts are notoriously willing to impose injunctions filed by industrial corporations against Indigenous people.[28]
Weaponizing Injunctions. Corporations are weaponizing the injunction process to remove Indigenous people from protecting their land. When it comes to industrial development, courts are far more likely to recognize and uphold colonial laws and interests, not Aboriginal rights or Indigenous interests. Corporations have well-resourced legal teams and deep pockets to seek injunctions from the courts. Indigenous Peoples do not always have the resources to fight these proceedings in court, despite the significant effects the decisions will have on Indigenous communities, their lands, and their rights.[29] Court orders to shut down Indigenous protests carry the state’s power of enforcement, which includes RCMP tactical teams, snipers, dogs, helicopters, and armoured vehicles. Land protectors are criminalized and forcibly removed from their lands.
When people say that the “rule of law by systems of fairness” justifies the use of force against Wet’suwet’en protesters, they fail to recognize that the system does not provide the degree of procedural fairness it purports to. It does not expose unfair laws to the scrutiny they require.
Conclusion
Wet’suwet’en protesters are asserting their Creator-given right and obligation to protect their lands. Many have lost faith in Canadian rule of law, and understandably so. Canada and British Columbia are over-emphasizing “rule of law by the most powerful.” They are failing to follow the “rule of law by systems of fairness” because our systems are not alive to the detrimental impact that these harmful laws are causing.
How can we walk the path towards reconciliation while heavily armed police invade unceded territory to enforce unjust laws and court orders?
By bearing witness to this ongoing story.
All of us, dear readers, must bear witness. We must hear the truth about government action being taken in our name. Government action that harms Indigenous Peoples.
These stories have been left untold for too long. We must hold our governments accountable for acting in the spirit of reconciliation, which includes genuine engagement with Indigenous Peoples according to the rule of law.
Until next time,
ReconciliACTION YEG
[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35 [Constitution Act, 1982]. [2] See Delgamuukw v British Columbia, 1997 CanLII 302 (SCC) at paras 116-18 and 145 [Delgamuukw]. [3] Guerin v The Queen, [1984] 2 SCR 335 at 378-79 and 382. [4] Delgamuukw, supra note 2 at para 7. [5] Ibid at para 170. [6] Memorandum of Understanding Between Canada, British Columbia and Wet'suwet'en as agreed on February 29, 2020, 14 May 2020, online: Government of Canada <https://www.rcaanc-cirnac.gc.ca/eng/1589478905863/1589478945624> [2020 Memorandum of Understanding]. [7] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (CanLII). See also Delgamuukw, supra note 2 at para 168. [8] Ibid at paras 35 and 47; [9] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15 [UNDRIP]. [10] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (Canada does not expressly adopt the “free, prior and informed consent” standard articulated at art 10 of UNDRIP. However, the preamble states that: (1) “Canada … reaffirm[s its] solemn commitment to … uphold the principles of the Declaration”; and that (2) that Canada “is committed to responding to the” TRC’s Calls to Action and the National Inquiry in to MMIWG’s Calls for Justice which includes a call to “fully adopt and implement the Declaration”); and Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 (British Columbia does not expressly adopt art 10 of UNDRIP. However, art 7(b) of the British Columbia law provides that the government may negotiate with “an Indigenous governing body” in order to obtain their “consent” before making a decision under existing laws.) [11] UNDRIP, supra note 8 at art 10. [12] See Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII) at paras 53-56 and 75 [Coastal GasLink, 2019]. See also UVic Video Library, “Wet’suwet’en and the Costal (sic) Gaslink Pipeline injunction case” (17 March 2020) online (video): YouTube<https://www.youtube.com/watch?v=nPDcSpBjpBY>. [13] Indian Act, RSC 1985, c I-5 at art 74. [14] Constitution Act, 1982, supra note 1 at s 1. [15] R v Sparrow, 1990 CanLII 104 (SCC) at 1109 [Sparrow]. [16] Ibid at 1113-14. [17] Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343 (CanLII). See summary at Coastal GasLink, 2019, supra note 12 at paras 1-9. [18] See Jaskiran Dhillon and Will Parrish, “Exclusive: Canada police prepared to shoot Indigenous activists, documents show” The Guardian (20 December 2019) online: <https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land-defenders-police-documents>. [19] 2020 Memorandum of Understanding, supra note 6. [20] The Canadian Pres, “Discussions to resolve B.C. LNG pipeline blockade have reached a pivotal point: Miller” CTV News BC (16 November 2021) online: <https://bc.ctvnews.ca/discussions-to-resolve-b-c-lng-pipeline-blockade-have-reached-a-pivotal-point-miller-1.5668871>. [21] See Coastal GasLink, 2019, supra note 12. [22] See Jeremy Nuttall & Kieran Leavitt, “Critics call it ‘unnecessary’ and ‘excessive.’ Watch how these RCMP arrests on Wet’suwet’en territory went down” (24 November 2021), online: Toronto Star <https://www.thestar.com/news/canada/2021/11/24/video-from-wetsuweten-territory-shows-how-rcmp-arrests-of-two-journalists-pipeline-opponents-went-down.html>. [23] Brienna Charlebois, “Tensions building in Wet'suwet'en territory as B.C. pipeline conflict continues” CTV News BC (18 November 2021) online: <https://bc.ctvnews.ca/tensions-building-in-wet-suwet-en-territory-as-b-c-pipeline-conflict-continues-1.5672253>. [24] See William Blackstone, “Of the Nature of Laws in General” and “Of the Laws of England” in William Blackstone, Commentaries on the Laws of England, vol I (Oxford, Oxford University Press, 2016) 48-67 (law is created by the sovereign and the judiciary interprets the law based on custom and precedence); John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995), Lectures I and VI (law is created by the sovereign and the sovereign is that who is habitually obeyed by the people, whether through fear or other reasons); HLA Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harvard L Rev 593-629 and HLA Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) ch V (there is no necessary connection between law and morality; a valid law may be an oppressive law). See also Re Manitoba Language Rights, 1985 CanLII 33 (SCC) at paras 59-60. [25] The power for Parliament and Legislatures to pass laws arise from Parts IV and V of the Constitution of Canada. The Constitution does not expressly recognize Indigenous laws. However, Parliament recently recognized Indigenous right to self-government in An Act respecting First Nations, Inuit and Métis children, youth and families (SC 2019, c 24 at art 8(a)). It is not yet clear what this right will mean in Canadian constitutional law. [26] Lon Fuller, The Morality of Law, revised edition (New Haven: Yale University Press, 1969 (law can mitigate the harms of an unjust system: laws are created by legislators who should explain themselves in the development of those laws, law is applied by executive and administrative bodies who must act in accordance with the principles of procedural fairness, and the judiciary interprets laws in the manner that best reflects justice), Joseph Raz, “The Rule of Law and its Virtue” in Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) 210-229 (the rule of law serves to protect human dignity, but it is not sufficient to protect against fundamentally unjust laws). [27] RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311 at 346. See also AC and JF v Alberta, 2021 ABCA 24(CanLII) at paras 33-34. [28] See Yellowhead Institute, “A review of over 100 injunction cases involving First Nations across Canada” online: Yellowhead Institute<https://redpaper.yellowheadinstitute.org/wp-content/uploads/2019/11/injunction-infographics.pdf>. Canadian courts approved 81% of injunctions filed by industrial corporations against First Nations, denied 81% of injunctions filed by First Nations against industrial corporations, and denied 82% of injunctions filed by First Nations against the Crown. [29] See e.g. Yellowhead Institute, “Weaponizing Injunctions: How Canada criminalizes Indigenous land defense”(14 October 2020), online (video): YouTube <https://www.youtube.com/watch?v=RfEOB8JJSSM>; Nuttall & Leavett, supra note 22.