Kate Gunn and Bruce McIvor: The Wet'suwet'en, Aboriginal title, and the rule of law—an explainer
COMMENTARY   by Guest on February 13th, 2020

COLONIZATION ROAD SCREEN SHOT
By Kate Gunn and Bruce McIvor


The RCMP’s enforcement of the Coastal GasLink injunction against the Wet’suwet’en has ignited a national debate about the law and the rights of Indigenous people.

Unfortunately, misconceptions and conflicting information threaten to derail this important conversation.

Below, we attempt to provide clear, straightforward answers to address some of these fundamental misunderstandings.
What about support for the project from the Wet’suwet’en elected Chiefs and Councils?

Media outlets across the country have repeatedly reported that First Nations along the pipeline route, including the Wet’suwet’en, have signed agreements in support of the project.

Underlying this statement are several key issues that require clarification.

First, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils.

The Chief and Council system exists under the Indian Act, a piece of federal legislation. It was introduced by the federal government in the 19th century as part of Canada’s attempts to systematically oppress and displace Indigenous law and governance.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday'way Aboriginal title case. They provided the court with exhaustive and detailed evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Second, Indigenous peoples hold rights to lands in Canada which extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982—the highest law in Canada’s legal system.

Third, the fact that First Nations have signed agreements with Coastal GasLink does not, in itself, mean that its members support the project without qualification.

Across the country, Indian Act band councils are forced to make difficult choices about how to provide for their members—a situation which exists in large part due to the process of colonization, chronic underfunding for reserve infrastructure, and refusal on the part of the Crown to meaningfully recognize Indigenous rights and jurisdiction.

The fact that elected Wet’suwet’en Chiefs and Councils have entered into benefit agreements with Coastal GasLink should not be taken as unconditional support for the project.

Finally, similar to how Canada functions as a confederation with separate provinces with their own authority, First Nation decisions on major projects are not simply a matter of majority rules.

The Quebec provincial government made it clear that it was opposed to and would not sanction the proposed Energy East pipeline. The federal government and other provincial governments respected Quebec’s right to make this decision. Similarly, First Nations often disagree about major projects. One cannot speak for another and the majority cannot simply overrule the minority or individual First Nations.
But aren't the Indian Act Chiefs and Councils democratically elected?

Chiefs and Councils under the Indian Act may be elected, but they do not necessarily speak for the Nation as a whole.

Most Chiefs and Councils are elected by status ‘Indians’ whose names are on an Indian Act band list. The federal government decides who is entitled to be registered as a status Indian through the registration provisions of the Indian Act. The registration provisions are restrictive and have been subject to numerous legal challenges.

Some Indian Act bands have adopted custom election codes that allow non-status ‘Indians’ to vote. However, in general if an individual does not meet the criteria for ‘Indian’ status under the Indian Act, they will not be able to vote in band elections.

Critically, the fact that an Indigenous person is not registered under the Indian Act does not mean that they do not hold Aboriginal title and rights. Aboriginal title and rights are held collectively and are not restricted to status Indians registered under the Indian Act.
But what about the ‘rule of law’?

Land law in Canada is much more complicated and uncertain than most non-Indigenous Canadians appreciate.

When European colonizers arrived, numerous Indigenous Nations existed throughout the land we now call Canada. Each Indigenous Nation, including the Wet’suwet’en, had their own unique and specific set of land laws. Canadian courts continue to recognize that Indigenous laws form part of Canada's legal system, including as a basis for Aboriginal title. The "rule of law" therefore includes both Canadian and Indigenous law.

Under international and British law at the time of colonization, unless Indigenous people were conquered or treaties were made with them, the Indigenous interest in their land was to be respected by the law of the European colonizing nation. The British Crown never conquered or made a treaty with the Wet’suwet’en.

In the early days of the colonization of what is now British Columbia, the British government was well aware that based on its own laws it was highly questionable that it had any right to occupy Indigenous lands or assign rights in those lands to individuals or companies.

Nonetheless, beginning in the 1860s the colony of British Columbia began passing its own land laws and giving out property interests in Indigenous land without any established legal right to do so.

The source of the Province’s authority over Indigenous lands remains unresolved in Canadian law today.

In 2004 the Supreme Court of Canada referred to the historical and current situation as British Columbia’s de facto control of Indigenous lands and resources.

In other words, the Supreme Court recognized that the Province’s authority to issue permits for Indigenous lands, including the type of permits issued for the Coastal GasLink pipeline, is not based on established legal authority. It is based on the fact that the Province has proceeded, for over 150 years, to make unilateral decisions about Indigenous lands.

The fact that the Province has acted since the 1860s as though it has full authority to decide how Indigenous peoples’ lands are used does not make doing so legal or just.MARK WORTHING
Isn’t this Crown Land?

Under Canadian law, the Crown, as represented by the various provincial governments, has what is referred to as the underlying interest in all land within provincial boundaries. This is based on the discredited and internationally repudiated ‘doctrine of discovery’. Courts in Canada have concluded that regardless of the doctrine of discovery having been rejected around the world, they are unable to question its legitimacy.

Importantly, even if one accepts that provincial governments hold the underlying interest in ‘Crown land’, that interest is subject to strict limits. It does not mean that the provincial governments have a legal right to occupy Indigenous lands or to grant rights to those lands to individuals or companies. Nor does it give provincial governments the right to sell Indigenous land, assign interests to people or companies or forcibly remove Indigenous people from their territories.

The right to benefit from the land, decide how the land should be used and exclude other people from entering on or using the land is separate from the Crown’s underlying interest in the land.

The right to benefit from the land and exclude others from using the land is part of what Canadian courts have described as Aboriginal title. Aboriginal title, including Wet’suwet’en Aboriginal title, takes precedence over the Crown’s underlying interest in the land.

While Canadian courts have held that provincial governments may be able to infringe Aboriginal title, the requirements to justify infringement are very onerous. The provincial government has not attempted to justify its infringement of Wet’suwet’en Aboriginal title.CARLA LEWIS
But what about the Wet’suwet’en not having proven their Aboriginal title in court?

As with other Indigenous Nations, Wet’suwet’en Aboriginal title exists as a matter of law. It predates the colony of British Columbia and British Columbia’s entry into confederation in 1871.

Its existence was not created by section 35 of the Constitution Act, nor does it depend on recognition by Canadian courts.

Canadian courts can recognize Wet’suwet’en Aboriginal title, but they cannot create it. A court declaration of Aboriginal title would merely confirm its existence under Canadian law.

In the Delgamuukw-Gisday'way case, the courts heard extensive evidence about Wet’suwet’en title and rights. Ultimately, the Supreme Court refused to issue a declaration in favour of the Wet’suwet’en because of a technicality in the pleadings. The parties were left to either negotiate a resolution or begin a new trial.

Regardless of whether there is a court declaration, it is open to the Province to recognize and respect the existence of Wet’suwet’en title at any time.

Instead of recognizing the existence of Aboriginal title, the current provincial government continues to adhere to a policy of denial. This is the same policy endorsed by every provincial government since British Columbia became a part of Canada.

As long as it maintains this policy, the Province avoids the implications of having to recognize Wet’suwet’en title and fulfil its corresponding obligations under Canadian law.

By its continued denial of Wet’suwet’en title, the Province avoids the hard work of reconciling its longstanding failure to respect Indigenous land rights with the continued existence and resurgence of Wet’suwet’en law and governance.

Bruce McIvor is principal of First Peoples Law Corporation, which is legal counsel for Unist’ot’en, and an adjunct professor at UBC's Allard School of Law, where he teaches the constitutional law of Aboriginal and treaty rights. Kate Gunn is a lawyer and associate at First Peoples Law Corporation and author of"Agreeing to Share: Treaty 3, History & the Courts," , which was published in the UBC Law Review. The statements here were made on their own behalf and reflect their views on this issue, not those of their client. This article originally appeared on the First Peoples Law Corporation website.