The world watched in early January as an armed RCMP force entered Wet’suwet’en territory and arrested 14 people. The RCMP was enforcing an interim injunction obtained by Coastal GasLink Pipeline Ltd. (a subsidiary of TransCanada Pipelines) to prevent interference with work on its planned natural gas pipeline crossing Wet’suwet’en territory.

On January 6, just prior to the raid, the RCMP released a statement to the media. Part of the original text said:

For the land in question, where the Unist’ot’en camp is currently located near Houston, BC, it is our understanding that there has been no declaration of Aboriginal title in the Courts of Canada. In 1997, the Supreme Court of Canada issued an important decision, Delgamuukw v. British Columbia, that considered Aboriginal titles to Gitxsan and Wet’suwet’en traditional territories. The Supreme Court of Canada decided that a new trial was required to determine whether Aboriginal title had been established for these lands, and to hear from other Indigenous nations which have a stake in the territory claimed. The new trial has never been held, meaning that Aboriginal title to this land, and which Indigenous nation holds it, has not been determined.

The RCMP subsequently called this portion of its media statement “inappropriate” and removed it. Nonetheless, the RCMP’s statement is reflective of a commonly held view that the Indigenous decision-making authority inherent in Aboriginal title, and in an Indigenous nation’s own laws and governance, does not apply until it has been determined in court or recognized by the Crown in an agreement.

This view effectively puts the burden of proof on Indigenous nations to “prove” to state institutions that their pre-existing title and governance exist in order for that title to apply — a view sometimes referred to as the “prove it” approach. This is in stark contrast to the recognition approach, which starts by acknowledging Indigenous rights and title.

More than two decades after the Delgamuukw decision affirmed Aboriginal title, the Crown’s continued pattern of making decisions in the absence of Indigenous consent — without resolving the underlying title and governance issues — undermines the constitutional foundations that are meant to define Canada. Ultimately, this is about much more than a pipeline.

Aboriginal rights are inherent not granted by Canadian law

When an Indigenous nation brings a title claim in court, the court expects that nation to prove its claim. The procedural double standard in this approach has been pointed out by observers such as the Indigenous legal scholar John Borrows, who asks: “Why should the Aboriginal group bear the burden of reconciliation by proving its occupation of land? After all, the Crown is the subsequent claimant. Why should the Crown not have to prove its land claims?” Nonetheless it is obvious that Canadian courts accept Crown title based, as Borrows puts it, on “bare words,” while expecting Indigenous nations to prove their claim to pre-existing Aboriginal title.

What the RCMP statement does not address, and what is often overlooked in the “prove it” approach, is that Aboriginal title and governance exist and apply in Canadian law now, even if the bounds of title lands have not been delineated in a court case.

Canada’s Constitution and judgments of the Supreme Court of Canada recognize the pre-existing nature of Aboriginal rights and title, which are interwoven with Indigenous laws and governance. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which both the federal and BC governments have committed to implement, recognizes “the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.”

Importantly, the source of the inherent rights affirmed by UNDRIP is the pre-existing governance and culture of each Indigenous nation itself — in other words, UNDRIP recognizes rather than creates the rights. The Supreme Court of Canada similarly recognizes in Delgamuukw that constitutionally protected Aboriginal title is not created by Canadian law; rather, Aboriginal title “arises from the prior occupation of Canada by aboriginal peoples.” The SCC also described the system of Clans and houses with Hereditary Chiefs as “the fundamental premise of both Gitksan and the Wet’suwet’en peoples.” Canadian law is playing catch-up by slowly recognizing these rights and governance structures.

Wet’suwet’en Hereditary Chief Namoks (John Ridsdale) speaks as Indigenous nations and supporters gather to show support for the Wet’suwet’en Nation before marching together in solidarity, in Smithers, B.C., on Wednesday January 16, 2019. THE CANADIAN PRESS/Darryl Dyck

Legally there is no question that Aboriginal title exists, and there is no doubt that related rights of Indigenous nations to make decisions about and govern their territories also exist. The Canadian state lost its arguments that Aboriginal title does not exist, perhaps most notably in the Delgamuukw case brought jointly (with the Gitxsan) by hereditary leadership of the same Wet’suwet’en nation whose members were arrested under the Coastal GasLink injunction.

In Delgamuukw, the Supreme Court of Canada did not delineate where Gitxsan and Wet’suwet’en title exists, holding that a new trial would be required for a Court to determine those factual matters. Yet the Court added: “I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts.” Instead, the Court encouraged “negotiations in good faith” to apply the principles it had articulated about the existence and application of Aboriginal title.

However, for years afterward the Crown maintained a position that Aboriginal title does not apply on a territorial basis, but rather to small high-use areas within a territory. The Crown lost this argument in the Tsilhqot’in decision.

The trial judge in Tsilhqot’in stated: “What is clear to me is that the impoverished view of Aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a ‘postage stamp’ approach to title, cannot be allowed to pervade and inhibit genuine negotiations. A tract of land is not just a hunting blind or a favourite fishing hole.”

When the case made its way to the Supreme Court of Canada, the Court declared Tsilhqot’in title and rejected a postage stamp approach, underlining that “Delgamuukw affirms a territorial use-based approach to Aboriginal title.” The Court added that title includes “the right to decide how the land will be used” and “the right to proactively use and manage the land.”

Despite this recognition, in practice the legal reality of Aboriginal title and governance has been largely held back from on-the-ground application by the Crown’s fallback position, which could be cynically summarized as “Yes, Aboriginal title and governance exist, but we don’t know where exactly and it’s quite complicated, so in the meantime we’re going to continue making decisions as if it doesn’t exist anywhere.” This “prove it” mentality is exhibited in the RCMP’s retracted statement about the Unist’ot’en camp.

Why is Aboriginal title (still) not being applied on the ground?

There are several factors that have allowed the Crown to continue making decisions that avoid the implications of Aboriginal title and Indigenous governance on the ground over the two decades since the Delgamuukw decision was made. They include the following:

  • Aboriginal title cases are long and expensive. The millions of dollars (and many years or decades) required to take an Aboriginal title case to trial, and likely through appeals, is prohibitive for many Indigenous nations. For example, the Delgamuukw case was filed in 1984, started trial in 1987 and received its final appeal decision in 1997 (when a new trial was ordered).
  • The Crown has generally not concluded agreements to recognize Indigenous title and governance. The Supreme Court of Canada has stated that the Crown has a legal duty to “negotiate in good faith” to reach agreements to reconcile assertions of Crown sovereignty with Aboriginal title and rights. However, there has been a widespread and protracted failure by the Canadian state to honourably reach agreements with Indigenous nations regarding exercise of their title and governance.
  • When it comes to development proposals and other projects, the courts have held the Crown to a standard of consultation, but not consent. Canada’s constitutional law requires that, until Aboriginal title and related rights are “proven” in court or resolved by agreement with the Crown, the Crown has a duty to consult and, in some cases, accommodate Indigenous nations regarding decisions that may impact their title and rights. While this obligation has required the Crown to engage in more dialogue with Indigenous nations, so far it has also continued to permit the Crown to make decisions over their objections.

There may, however, be serious consequences to proceeding without Indigenous consent. Not just because of the uncertainty and conflict that it may engender in the short term (as we are seeing now in Wet’suwet’en territory), but, as the Supreme Court of Canada warns in Tsilhqot’in, “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”

Unfortunately, the Crown has so far relied on the high practical barriers to Indigenous nations pursuing title cases and the slow pace at which they proceed to avoid truly accepting Indigenous title and governance as a constraint on Crown decision-making. The standard of consultation, which the Supreme Court of Canada initially articulated as a minimum interim measure pending resolution of Aboriginal title and rights issues, has often been treated as the indefinite norm.

This leaves the practical application of Aboriginal title and governance in a state of limbo in Canada’s legal system, and contributes to conflicts like the one unfolding as Wet’suwet’en hereditary leaders seek to enforce their own laws regarding Coastal GasLink. The “prove it” approach to Indigenous title and governance directly contradicts and undermines any meaningful attempts at reconciliation by showing willful blindness to the rights of Indigenous peoples, in this case the Wet’suwet’en.

The need to respect the rule of law is often raised when it comes to pipelines; in fact, the Prime Minister himself raised it in response to the recent arrests in Wet’suwet’en territory. Respecting the rule of law is indeed important, but it can’t be selective. To truly uphold the rule of law, the constitutional recognition of Aboriginal title and governance must be meaningfully applied in Crown decision-making, before crucial decisions are made about Indigenous territories.

Photo: Hereditary Chief Ronnie West, centre, from the Lake Babine First Nation, sings and beats a drum during a solidarity march after Indigenous nations and supporters gathered for a meeting to show support for the Wet’suwet’en Nation, in Smithers, BC, on January 16, 2019. THE CANADIAN PRESS/Darryl Dyck

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Eugene Kung is a staff lawyer at West Coast Environmental Law.
Gavin Smith is a staff lawyer at West Coast Environmental Law.

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