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George Floyd’s life mattered. Like Ahmaud Arbery, Breonna Taylor, Tony McDade, and too many others whose names we don’t know, Floyd was stolen from friends and family members who loved him and cared about him. His murder cannot be undone, and it is our most recent reminder of the fact that white supremacy, police violence, and racism are dangerously prevalent forces in America today… Read Full Statement

Defending the Land

Before dawn on February 6, Royal Canadian Mounted Police (RCMP) in the western Canadian province of British Columbia (BC) raided the territory of the Wet’suwet’en First Nation and arrested at least six land defenders. The Wet’suwet’en had been protesting the construction of the Coastal GasLink Pipeline Project by blocking access to checkpoints along the construction route in northern BC. They opposed the construction of this 670-kilometer natural gas pipeline that would cut through their traditional territory over environmental concerns as well as what they see as the provincial government’s dismissal of Indigenous land rights. Though the RCMP claims that they were simply enforcing an expanded injunction granted by the BC Supreme Court in December, which allowed Coastal GasLink to continue construction of the pipeline and remove anyone in its way, the Wet’suwet’en protestors claim that continued construction on traditional territory without their consent is unlawful. By mid-February, the Wet’suwet’en had taken up more extreme measures of protest, such as blocking major roads in the densely populated Greater Vancouver area and organizing rallies in key cities across the country. The ongoing conflict between the Wet’suwet’en First Nation and proponents of the Coastal GasLink pipeline in British Columbia shows that the Canadian government never hesitates to encroach on Indigenous land rights when economically convenient. This is problematic because Aboriginal title is protected under both the Constitution of Canada and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

The approval of the Coastal GasLink pipeline was a bait-and-switch by an administration that at first appeared to be friendly to Indigenous interests but soon revealed itself to be even friendlier to corporate interests. In another example from 2018, Prime Minister Justin Trudeau  decided to nationalize at taxpayer expense the struggling Trans Mountain project, a multi-billion dollar triple pipeline that spans Canada’s west coast. Although the Trans Mountain project expansion was expected to increase Canada’s crude exports, it has since been mired in numerous legal challenges related to environmental concerns and Indigenous legal rights. In the case of Coastal GasLink, announced in the fall of 2018, the pipeline would be an indispensable component of a $30 billion natural gas project that Trudeau has called the largest private investment in Canada’s history. Trudeau’s continued support for pipeline development since taking office is part of a calculated effort to grow the economy and gain political support from voters in the oil-rich provinces.

However, policy decisions like the approval of the Coastal GasLink should be condemned because they disregard Indigenous land rights. The attempted construction of pipelines poses at least three legal problems: the dismissal of long-standing Indigenous law in favor of instruments of common law, the neglect of precedents set by the Canadian Supreme Court’s marquee decisions, and the violation of international norms.

The injunction granted by the BC Supreme Court flouts Indigenous legal systems that have operated since well before common law customs were established in Canada. Coastal GasLink claims to enjoy the support of leaders from all 20 First Nations whose territories would be crossed by the pipeline, including a majority of Wet’suwet’en band council leaders. However, many commentators have misunderstood Wet’suwet’en councilmen’s approval of the pipeline on the basis of potential job creation and local economic growth to mean that the protestors represent a minority view. These councilmen derive their consultative power from the 1876 Indian Act, which created band councils to “gradually restore” Aboriginal agency and presence in public governance. Elected by members of First Nations, band council members are accountable to a federal agency–the Department of Crown-Indigenous Relations and Northern Affairs Canada–and not to their nations. The Indian Actundermines Indigenous governing systems and pushes Indigenous law, which does not use European-style electoral systems, completely aside. Under Indigenous law, decision-making power on behalf of the Wet’suwet’en nation resides not with band council leaders but with Wet’suwet’en hereditary chiefs, who are unanimous in their disapproval of the pipelines. From a historical perspective, Coastal GasLink’s consultative process was clearly designed to sidestep hereditary chiefs, who derive their legitimacy from Indigenous law that precedes the common law origins of the Indian Actand who assert authority over the 22,000 square kilometers of territory in question.

"Under Indigenous law, decision-making power on behalf of the Wet’suwet’en nation resides not with band council leaders but with Wet’suwet’en hereditary chiefs, who are unanimous in their disapproval of the pipelines."

Secondly, allowing Coastal GasLink to continue construction over the dissent of the Wet’suwet’en runs counter to guidance from the Canadian Supreme Court. The relevant case is Delgamuukw v. British Columbia (1997), a landmark decision in defining the scope of Canadian Aboriginal title, a common law doctrine protecting ownership of traditional lands. Earl Muldoe (Delgamuukw) and more than 20 Gitxsan and Wet’suwet’en communities appealed to the Supreme Court to be granted “fee simple,” or outright ownership, over a combined 58,000 square kilometers of land. The Court ultimately delivered an unprompted and comprehensive Constitutional defense of the right of First Nations to own land fee simple. Interpreting the sentence “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” found in sec. 35 of the Constitution Act (1982), Chief Justice Joseph Lamer writes that “aboriginal… rights [include the] exclusive right to the use and occupation of the land, i.e.to the exclusion of both non-aboriginals and members of other aboriginal nations” (para. 185). Lamer C.J.’s position in Delgamuukw, although based on a textualist reading of the Constitution, is nevertheless legally innovative. By affirming Aboriginal ownership of land, he affirms that access to any First Nation’s territory is dependent solely on the discretion of that Nation’s own decision-making body. This ruling repudiates Coastal GasLink’s claim that the consent of councilmen from the Wet’suwet’en implies consent of the Wet’suwet’en Nation; collective consent from Wet’suwet’en council members does not imply consent from the Wet’suwet’en First Nation.

Finally, allowing GasLink to continue to build on Indigenous lands and forcibly remove Wet’suwet’en protestors is a violation of international legal norms. In 2016, Canada adopted the 2007 UNDRIP, a resolution of the UN General Assembly which recognizes broad Aboriginal rights and directs states to give legal recognition of Aboriginal ownership of traditional lands, territories, and resources. Article 29 of the Declaration reads, “Indigenous peoples have the right to the conservation and protection of the environment of their lands…States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.” UN resolutions are not legally binding for member states, but they nevertheless create international norms and standards that states are fully expected to implement. Resolutions can even become legally binding under certain circumstances, such as when the BC Legislative Assembly formally implemented the UNDRIP in November 2019. This means that recognition of Aboriginal title is not just customary but enshrined in provincial law, a fact that has been disregarded by the BC Supreme Court and the RCMP.

Adding to the challenge of resisting development on traditional lands is the fact that many First Nations are unable to take on the legal and communications costs of entering into negotiations with the Crown to formalize their land ownership (as in the high-profile case of Nisga’a negotiations and subsequent treatymaking), instead relying on the exclusion doctrine outlined in Delgamuukw to assert de factoland possession. This possession is easily compromised by the RCMP’s use of tactical vehicles, helicopters, and special forces. The removal of journalists from the premises, supposedly for their own safety, is a further point of concern.

The BC Supreme Court appears to have given in to historical amnesia and economic expediency. In the face of relentless economic competition and a bullish 2020 natural gas market, the BC provincial government has chosen to ignore Aboriginal, domestic, and international legal instruments for potential economic gain. Should representation become available, the Wet’suwet’en could pursue litigation that may lead to more concrete protections, possibly from the Canadian Supreme Court, against Canada’s brazen violation of both domestic and international law.

Illustration: Duairak Padungvichean ’20

This article originally appeared in the March 2020 issue of the Brown Political Review magazine.