Fourteen people may have been arrested at a blockade south of Houston Jan. 7 when the RCMP enforced a court injunction giving Coastal GasLink workers access to the company’s planned natural gas pipeline route but a larger question of Canadian law remains unaddressed.
The arrests followed protests that the pipeline runs through traditional Wet’suwet’en land and that permission for the project hasn’t been granted by some Wet’suwet’en hereditary chiefs.
Claims to traditional Indigenous territory are not unique in British Columbia, where most of the province was settled without treaties being signed with First Nations, and where numerous land claims remain outstanding.
What makes the Wet’suwet’en different is the Delgamuukw decision of the Supreme Court in 1997, which concluded that Aboriginal title to land can be established if an Indigenous nation could prove exclusive occupation when the Crown asserted sovereignty.
That case was originally brought by Wet’suwet’en and Gitxsan hereditary chiefs in 1984 when they sued the provincial government over jurisdiction to thousands of square kilometres of northwest B.C.
Delgamuukw also recognized First Nations oral history as legitimate evidence, and that aboriginal title includes the rights to resources on the land the right to extract the resources.
The Tsilhqot’in Nation v British Columbia case of 2014 went further by recognizing the Tsilhqot’in Nation’s title to lands.
Unlike Tsilhqot’in, the Delgamuukw case didn’t completely settle the Wet’suwet’en land claim.
“It said Aboriginal title exists in theory but has not yet been proven on the ground. It would take another trial for that or they would have to reach an agreement with the Crown. They don’t have an established title at this point,’” Kent McNeil, a law professor at Osgoode Hall Law School in Toronto and the author of several books and papers on Aboriginal title, told Black Press.
“If they have Aboriginal title to that land the governments should get their consent,” McNeil added.
When it comes to resource development, governments can infringe on the Aboriginal title to those lands “based on a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group,” according to the Tsilhqot’in judgement.
A new trial for Delgamuukw not yet happened, but the protesters on the forest service road south of Houston are “asserting their title on the ground and they’re saying you can’t do this without consent because it passes through our territory,” McNeil said.
An agreement reached last week between Wet’suwet’en hereditary chiefs and the RCMP to allow pipeline workers to get to the work site hasn’t changed their opposition to the project.
“The pipeline does not have consent or approval from the hereditary chiefs to move forward and that continues to be their stance,” said Jenn Wickham, a spokeswoman for the Gidimt’en blockade site protesters.
What makes this situation more complicated is that the elected leadership of 20 First Nations has signed economic benefits agreement with Coastal GasLink. But hereditary chiefs say elected band councils have jurisdiction only on reserve lands and not on the larger traditional territory.
In terms of a resolution of the dispute, the message from Ottawa is unclear even as Prime Minister Justin Trudeau has said Canada endorses the United Nations Declaration on the Rights of Indigenous People (UNDRIP).
“The declaration says there should be free, prior and informed consent,” said McNeil, referencing UNDRIP’s Article 32 that calls on signatory states to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.”
However, “in Canadian law, if Aboriginal title hasn’t been proven the Canadian government doesn’t have to get consent they just have to consult. The Aboriginal group does not actually have a veto power,” McNeil explained.
“Canadian law isn’t really consistent with the UN declaration.”
Delgamuukw didn’t firmly establish if the Wet’suwet’en have jurisdiction over their traditional land, but the lack of clarity, and what the protesters regard as insufficient consultation over the pipeline project has led to the current situation of dispute, blockades and arrests.
“It’s really important that people recognize how government and industry are trying to sidestep the Wet’suwet’en people as a nation and our hereditary chiefs,” Wickham said.
A lack of proper consultation over resource development also puts the resources companies in awkward positions, explained Skeena-Bulkley Valley NDP MP Nathan Cullen.
“At the end of the day you can’t leave it up to companies to negotiate things like title,” he said. “Government to government means that, not government to company. I’ve talked to many resource and mining companies and they say we’ll talk [to First Nations], but we don’t have the authority to talk about land ownership.”
For Nechako Lakes MLA John Rustad, there has already been plenty of consultation with the Wet’suwet’en affected by the pipeline.
“We worked tirelessly towards trying to find a solution and to find a way to improve relationships. [Coastal GasLink] has undertaken even more efforts. The reality was that some of the Hereditary Chiefs refused to consider any option other than ‘no’ to a gas pipeline,” he said.
“In my opinion, these chiefs are looking for a conflict. I believe they are looking for another reason to go back to court and they are looking at this project as the spark to get them there,” said Rustad, who added that the Tsilhqot’in judgement stated that Aboriginal title can be infringed if a project is of significant interest.
The path forward offer no fast and easy solutions.
One is that the B.C. and federal governments become more active in consultation.
“They should be sitting down and talking with the hereditary chiefs,” said McNeil. “They have to listen to the chiefs’ concerns and accommodate them in some way…If they did consult adequately they could still go ahead with the project, even without consent. But that might not stop the protests.”
Another path, as McNeil explains, is that the question of Aboriginal title is answered, whether through Delgamuukw, or a court case like it.
“If the title is proven in the future and the province and the resource company proceeded and built the pipeline then it’s problematic because it means they were trespassing on Aboriginal land.”
If the issue remains unsettled, the disputes could still be there for future governments – and generations – to face.
“The question needs to be answered,” Cullen said. “Otherwise there is uncertainty for companies and more conflict which nobody wants.”