Unlike the majority of Canada, most of the territory we now know as British Columbia was never ceded by First Nations who have
lived on these lands for at least the last 14,000 years.
In contrast, the Colony of
British Columbia, as settlers first called the province, has existed for
just over 160 years — less than one per cent of the time First Nations
people have lived here.
Except for the
Douglas Treaties
on Vancouver Island, a portion of northeastern B.C. covered by Treaty
8, and a handful of modern treaties signed since the 1990s, the majority
of British Columbia is First Nations’ land that was never covered by a
treaty or taken as spoils of war.
Today, there are 200 distinct First Nations occupying their territories in B.C.
Like their lives and
cultures, First Nations and Inuit legal systems across Canada were never
extinguished, even where treaties were signed. The Supreme Court of
Canada has declared these legal systems, unique to each nation, never
stopped being valid just because Europeans settled here.
.This reality has meant
continual clashes between Canadian governments who wish to mine natural
resources for profit and jobs, and Indigenous people asserting their
right to a seat at the table where decisions are made over how lands and
resources are used.
The latest such conflict occurred last week
when the Royal Canadian Mounted Police entered the unceded territory of
the Wet’suwet’en Nation, 22,000 square kilometres located southwest of
Smithers,
arresting almost 30 Wet’suwet’en people and their allies.
The police were enforcing a Dec. 31, 2019
B.C. Supreme Court injunction granted on behalf of Coastal GasLink, a
subsidiary of TC Energy, a.k.a. TransCanada Energy.*
Last month, following the injunction ruling, B.C. Premier John Horgan announced the Coastal GasLink project would go ahead,
telling the media “the rule of law applies” now that the courts had sided with TC Energy.
But on unceded territory, the title of
which is claimed by a First Nation living there for thousands of years
without signed treaties or surrendering their land, whose rule of law
applies? That question drives intensifying debate and protests.
Let’s break down and clarify six elements at play in this legal drama.
1. THE INJUNCTION
The B.C. Supreme Court’s Dec. 31 injunction
sided with Coastal GasLink, giving it the right to continue
construction on a 400-person “man camp” in anticipation of a provincial
permit to construct a natural gas pipeline running from Dawson Creek to
Kitimat, B.C.
Both the man camp and the pipeline will cut right through untouched Wet’suwet’en territory.
This series of raids is the second time in
13 months
the RCMP had raided Wet’suwet’en checkpoints along the logging road
leading to the proposed man camp site. The previous raids were in the
wake of a temporary injunction granted Coastal GasLink. In both cases
arrests were made in the name of Coastal GasLink workers’ safe access to
the territory.
Injunctions have proven an effective legal
tool in Canada for corporations. The Yellowhead Institute, a First
Nations-led research centre focusing on land and governance based in
Ryerson University’s faculty of arts, released a
report last fall showing of the roughly 100 injunctions they reviewed, 76 per cent filed by corporations against First Nations were
granted, but just 19 per cent of injunctions filed by First Nations against corporations were approved.
“Land alienation is linked to the broader
political economy of Canada that relies to a significant extent on its
natural resource sector to secure jobs and investment. Thus, land
alienation is a major economic driver of the Canadian economy,” the
report concludes.
2. HEREDITARY CHIEFS AND BAND COUNCILS
Under the
Indian Act,
those who are recognized by the federal government as having First
Nations “status” are grouped into bands, led by a chief and council
elected by the band members.
Bands have control over reserve lands,
where First Nations were forcibly relocated — sometimes on their own
territories, sometimes not — under the Indian Act. Under Canadian law,
reserve lands actually belong to the Crown, but bands have jurisdiction
over the people and services on those reserves.
Coastal GasLink has signed
Impact and Benefit Agreements with 20 Indian Act band councils along the 670-kilometre proposed pipeline route.
Prior to the passing of the Indian Act in
1876, First Nations, including the Wet’suwet’en had their own leadership
and legal systems that were ignored by colonial governments, but never
extinguished.
While the elected Wet’suwet’en chief and
council have jurisdiction over the reserve communities on their
territory, the rest of the 22,000 square kilometre territory — roughly
the size of New Jersey — is the jurisdiction of the 13 hereditary chiefs
of the Wet’suwet’en Nation’s five clans: Gilseyhu, Likhts’amisyu,
Laksilyu, Tsayu and Gidimt’en.
Between the five clans there are 13 houses,
each with their own territory overseen by a hereditary chief. The
proposed Coastal GasLink pipeline and man camp are slated for a section
of Wet’suwet’en Nation controlled by the Dark House.
Due to the recent passing of two hereditary
chiefs — and two hereditary chief vacancies — only nine of the 13
Wet’suwet’en hereditary chief positions are currently filled.
Unlike the hereditary royalty of the
British monarchy, Wet’suwet’en hereditary chief is not a lifetime
position bestowed on a bloodline. Rather, it’s a title that can be
bequeathed a Wet’suwet’en Nation member based on their character and
conduct — though this remains
a matter of some dispute within the Wet’suwet’en First Nation.
While the elected Wet’suwet’en band council
signed an agreement in favour of the pipeline with Coastal GasLink, the
nine Wet’suwet’en hereditary chiefs maintain it is they, not the band
council, who have jurisdiction over their territory.
“This pipeline does not go through one
band” community, said John Ridsdale, a.k.a. Hereditary Chief Na’Moks,
one of two hereditary chiefs of the Tsayu or Beaver Clan.
The Supreme Court of Canada has ruled that
in order for resource projects to go ahead on Indigenous lands, the
government must engage in consultation with Indigenous title holders in
order to receive their “consent” for the project — or else prove why
it’s in the public interest to override Indigenous people’s
constitutional rights.
The United Nations Declaration on the Rights of Indigenous Peoples goes
one step further, calling for “free, prior and informed consent” for
all projects on Indigenous lands.
But Chief Na’Moks says the B.C. government
abdicated its responsibility for consultation to a corporation, in this
case Coastal GasLink. And when the hereditary chiefs pushed back, the
government sent in the RCMP.
“You look at ‘free, prior and informed
consent,’ and at this point now, looking down the barrel of a gun, I
don’t know how that can be considered ‘free,’” he said.
There has been a Wet’suwet’en checkpoint on
the Morice West Forest Service Road, erected at Unist’ot’en Village on
Dark House territory, since 2009. In 2018, Coastal GasLink filed an
injunction against the checkpoint, alleging its workers were unable to
enter the territory to begin construction on the man camp.
In December 2018, the B.C. Supreme Court
granted a temporary injunction,
but the Wet’suwet’en refused to allow Coastal GasLink to cross. The
following month the RCMP raided the checkpoint, arresting 14 people.
Eventually the chiefs met with Coastal
GasLink and agreed to let workers enter Wet’suwet’en territory to
conduct “soft work” like water and soil sample collection and testing.
But Chief Na’Moks told The Tyee in a recent phone interview that Coastal
GasLink did not stick to the rules.
“They started clearing trees, building
roads, put in a man camp. They absolutely abused the access, which we
had allowed,” he said.
“We had filed a judicial review of the
certification and permitting of Coastal GasLink — it’s before the Oil
and Gas Commission right now — and in a 10-month period we have in
excess of 50 infractions.”
All nine existing hereditary chiefs oppose
the project, and issued an eviction notice to Coastal GasLink workers on
Jan. 4, 2020. By this point three protest camps had been established
along the service road to stop Coastal GasLink workers from entering.
But the granting of the temporary
injunction was enough to grant the RCMP powers to raid the camps. After
weeks of tense standoff, the RCMP began moving in, and over the course
of a week beginning Feb. 6 they raided and dismantled three Wet’suwet’en
camps along the Morice West Forest Service Road, arresting almost 30
people. No charges have been laid.
3. PREVIOUS COURT RULINGS
While the continued existence and relevance
of Indigenous land-based legal systems may come as news to many
Canadians, it is not news to our governments or law courts.
In fact, it is recognized in our Constitution: Sec. 35 recognizes and affirms the “existing Aboriginal and treaty rights.”
And our
Charter of Rights and Freedoms: the rights and freedoms of others do not override or take away those of Indigenous people.
Over the past 30 years there have been
several provincial and national court rulings affirming the existence
and continued relevance of Indigenous legal systems in what is now known
as Canada. In the interest of time and space, here are just a few:
R. v. Van der Peet (SCC 1996):
Dorothy Marie Van der Peet, a member of the Stó:lō Nation, was charged
with selling fish without a license. Van der Peet maintained this
infringed on her Indigenous hunting and fishing rights as outlined under
Sec. 35 of the constitution.
While Van der Peet lost the case, Supreme Court of Canada judge Beverley McLachlin wrote:
“The history of the interface of Europeans
and the common law with aboriginal peoples is a long one. As might be
expected of such a long history, the principles by which the interface
has been governed have not always been consistently applied. Yet running
through this history, from its earliest beginnings to the present time
is a golden thread — the recognition by the common law of the ancestral
laws and customs of the aboriginal peoples who occupied the land prior
to European settlement.”
Delgamuukw vs. The Queen/British Columbia (SCC 1997): A
combined legal effort
by the 13 Wet’suwet’en and 35 Gitxsan hereditary chiefs to stop the
province of B.C. from clearcutting on their unceded territories.
Originally filed in 1984, it took 13 years to reach the Supreme Court of
Canada, who ruled they could not establish Wet’suwet’en and Gitxsan
rights and title due to a technicality. Instead they suggested a
retrial, or negotiations with the province and federal governments.
With their resources exhausted, neither
Nation brought the case to trial again, and negotiations with Canadian
and provincial governments did not happen.
However, Delgamuukw,
named after
just one of the hereditary chiefs involved, did rule that Indigenous
oral history, previously dismissed by lower courts as irrelevant, was
just as valid as European settlers’ written histories. And it maintained
Indigenous rights and title could not be dismissed or dissolved by
Canadian or provincial governments.
The Tsilhqot’in Nation v. British Columbia (SCC, 2014):
This was the first Supreme Court of Canada case to rule definitively on
Indigenous rights and title. The courts granted the Tsilhqot’in
Nation’s claim to the 1,750 square kilometres they were in court to
protect from clear-cut logging.
While the courts did not say the decision
over resource extraction in the region belonged to the Tsilhqot’in
Nation alone, it did rule that when a First Nation has proven title in
court (as has the Tsilhqot’in), colonial governments must engage in
consultations with them, government-to-government, for free, prior and
informed consent on resource projects happening on their land before
greenlighting a project. The Wet’suwet’en seek but have not yet proven
title in court.**
As Judith Sayers, a.k.a. Kekinusuqs from
Hupacasath First Nation in Port Alberni, B.C., president of the
Nuu-chah-nulth Tribal Council,
wrote in The Tyee
a month after the ruling was released, “My prediction was that this
country would be rocked by the Tsilhqot’in decision and it certainly
was. We are still feeling the reverberations from the Tsilhqot’in
decision and will for many years to come.”
(You can read about other relevant court cases
here and
here.)
4. PAST STANDOFFS AND THE SHIFTING LEGAL CONTEXT
The Wet’suwet’en blockades are not the
first time First Nations people have literally stood their ground on
land and title disputes in Canada.
This summer marks the 30th anniversary of
the Oka Crisis, a 78-day standoff between the Mohawk and the province of
Quebec over the expansion of a nine-hole golf course by the Oka
municipality onto sacred Kanesatake Mohawk territory. While no golf
course was built, the Mohawk continue to
fight off development on the territory.
And 25 years ago, 400 police officers and
the army came down on 20 Ts’peten Defenders of the Secwepemc Nation at
Gustafsen Lake, B.C., after a 31-day standoff over ranchers’ grazing
rights on Secwepemc land.
But this is the first land standoff since
the Supreme Court of Canada made clear that Indigenous law was never
extinguished, said Kate Gunn, a lawyer with First Peoples Law.
Gunn’s firm is representing the Dark House
in an upcoming judicial review of Coastal GasLink’s archeological
mitigation plan for their territory. Gunn spoke to The Tyee on her own
behalf, not that of the Dark House.
The courts have ruled governments, not
corporations, must engage in nation-to-nation consultations, Gunn said,
that is consistent with the Indigenous nation’s laws and cultural
practices in seeking free, prior and informed consent.
“I don’t think that the federal or
provincial governments, at this point, have really grappled with what
that means in terms of having the Wet’suwet’en or other Indigenous
groups really actively asserting their laws and jurisdiction out on the
land,” she said.
“There isn’t a template that says which law is paramount when that happens.”
5. UNDRIP
Then there is the United Nations
Declaration on the Rights of Indigenous People, more commonly referred
to as UNDRIP, a non-binding resolution outlining the rights of
Indigenous people worldwide. Passed by the United Nations in 2007,
Canada did not endorse the declaration until 2010, although it still
referred to the document as “aspirational.”
It would be late 2015 before the federal
government promised to adopt and implement the declaration, a move we
are still waiting on over four years later. Rather, it was British
Columbia who took the first step last October by becoming the only
province to pass legislation aimed at implementing the declaration in
all provincial ministries, Crown corporations and laws.
The celebrations didn’t last long. RCMP raids on Wet’suwet’en territory, according to
some
who occupied the steps of the B.C. legislature last week, appear to
directly violate at least one of UNDRIP’s 46 articles. They point to
Article 8 which declares, “States shall provide effective mechanisms for
prevention of, and redress” for any action “which has the aim or effect
of dispossessing them of their lands, territories or resources” and any
“form of forced population transfer which has the aim or effect of
violating or undermining any of their rights.”
Sayers, who is also an assistant professor of business and law at the University of Victoria,
highlighted in The Tyee a few other UNDRIP articles these raids may violate:
“For instance, Article 18 gives the
Wet’suwet’en the right to participate in any decision-making through
their own procedures and law. This has not happened. Article 26 gives
them the right to own, use, develop and control the lands, territories
and resources they possess through ownership, and says the state must
give legal recognition and protect their lands and resources. None of
this has occurred to date, and it doesn’t look like B.C. is even
considering it. The government is saying this is Crown land, the company
has Crown permits, so therefore the development must happen.”
6. WHAT’S NEXT FOR THE COURTS
In her New Year’s Eve decision granting the
injunction that triggered last week’s RCMP raids, Madam Justice Church
of the B.C. Supreme Court made several
statements regarding whether Wet’suwet’en law should be factored when land claims remain unsettled.*
“As a general rule, Indigenous customary
laws do not become an effectual part of Canadian common law or Canadian
domestic law until there is some means or process by which the
Indigenous customary law is recognized as being part of Canadian
domestic law, either through incorporation into treaties, court
declarations, such as Aboriginal title or rights jurisprudence or
statutory provisions,” she wrote.
“There has been no process by which
Wet’suwet’en customary laws have been recognized in this manner. The
Aboriginal title claims of the Wet’suwet’en people have yet to be
resolved either by negotiation or litigation. While Wet’suwet’en
customary laws clearly exist on their own independent footing, they are
not recognized as being an effectual part of Canadian law.”
Ultimately Church concluded the issue of
whether Wet’suwet’en law and land title were legitimate are beyond the
scope of an injunction hearing. “This is not the venue for that analysis
and those are issues that must be determined at trial.”
Gavin Smith, a staff lawyer with West Coast Environmental Law and Smithers resident, wrote a blog post
tackling Madam Justice Church’s conclusions.
He notes: “The recognition of Indigenous
governance within the Canadian legal system is emphatically not an issue
specific to Dark House or the Wet’suwet’en. We all have an interest in
the recognition of Indigenous governance, both to address colonial
injustices and to uphold the law in its fullest sense (including the
Canadian constitution).”
In the wake of the injunctions, members of the Wet’suwet’en Nation have launched several court actions
including
a judicial review of Coastal GasLink’s permit as it relates to man
camps and their documented impact on violence against women and girls;
and a constitutional
challenge over the potential environmental impacts of a natural gas pipeline and the resulting carbon emissions.
This fight is far from over, but the existing Wet’suwet’en hereditary chiefs express confidence their law will prevail.
“At one point they said, ‘You’ve got to
prove your strength of claim,’” Na’Moks said of the B.C. government.
“I’d like to see their strength of claim. We know ours. We’ve been here
for thousands of years.”
*Story updated on Feb. 18 at 12:50 p.m.
to correct that the Dec. 31, 2019 injunction ruling in favour of Coastal
GasLink came from the B.C. Supreme Court, not the B.C. Court of Appeal.
**Story corrected Feb. 15 at 12 p.m.
Regards,
Aki and Scott
www.caribooblades.com
