Untangling the ‘rule of law’ in the Coastal GasLink pipeline standoff

It’s far more complicated than simply following an injunction
Jerome Turner
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When B.C. premier John Horgan said “the rule of law applies” in reference to the Coastal GasLink pipeline conflict, he meant that he would abide by an injunction granted by a provincial court to allow the company to enter and operate on Wet’suwet’en territory.

In doing so, he discounted a number of legal elements — and even an entire system of law — that arguably supercede the B.C. courts.

When it comes to injunctions, the deck is stacked. The Yellowhead Institute reviewed over 100 injunction cases late last year. They found that corporations succeeded in 76 per cent of injunctions filed against Indigenous nations, whereas requests for injunctions filed by Indigenous nations against governments and corporations were denied in over 80 per cent of cases.

And thus he also unwittingly raised larger questions about the legal aspects of the conflict.

Whose laws apply? And which laws?

The rule of law is far more complicated in this case than simply following an injunction. A pre-existing system of Indigenous governance, Supreme Court of Canada decisions, and a United Nations declaration all bring into question the legal validity of the injunction granted to Coastal GasLink.

Wet’suwet’en law

The story starts thousands of years ago — because that’s how long the Wet’suwet’en have inhabited their territory, which they have never ceded through treaty.

Five clans make up the Wet’suwet’en Nation — Gilseyhu (Big Frog), Laksilyu (Small Frog), Gidimt’en (Wolf/Bear), Likhts’amisyu (Fireweed), and Tsayu (Beaver) — and these clans are divided into 13 house groups. Under the traditional Wet’suwet’en system, the hereditary chiefs from each clan are title holders of the land, and each clan has the right to control access over a territory. One of the most egregious mistakes a person can make is trespassing. Unless immediately corrected, this was traditionally punishable by death. Now, the favoured corrective is eviction or banishment.

At the heart of Wet’suwet’en governance is the feast, referred to as bahlat in Wet’suwet’en or potlatch in English. The feast system endures despite the Canadian government’s attempts to eradicate it — potlatch ceremonies were outlawed by Ottawa from 1884 to 1951. At a bahlat, decisions are made and ratified, disputes are addressed, and Wet’suwet’en law is affirmed.

“There’s really no question in Canadian law that the Wet’suwet’en hereditary chiefs are the ones who represent the houses that have the say over what happens on the territory, not the tiny reserves.”

The bahlat is also where people receive traditional names, which transfer from one individual to another, after the previous holder of a name passes on. A traditional name carries honour and responsibility, but earning it does not happen overnight.

The Wet’suwet’en Nation, like most northwestern B.C. Indigenous nations, is matrilineal. This means those born to a Wet’suwet’en mother belong in her clan. Those with Wet’suwet’en fathers can be adopted by one of the four clans their father does not belong to. As a youngster grows, others watch how this person conducts themselves, and this may lead to the individual being accepted for a traditional name. This is how hereditary chiefs attain their leadership positions.

Once a name is passed on, the new holder is officially responsible for all the people and territory belonging to that name. Songs, stories, and names all come from the territories, which are the basis of all traditional responsibilities for which hereditary chiefs are responsible. At the bahlat, words matter — what is said becomes law. Breaking promises made there means a person may never be trusted again.

B.C. premier John Horgan attended a Wet’suwet’en bahlat organized for him in March 2019, as part of reconciliation efforts “focused on recognizing and implementing Wet’suwet’en title, rights, laws and traditional governance across the territory,” according to government notes on the event obtained through a freedom of information request made by a supporter of the Wet’suwet’en and provided to Ricochet.

“For too long, governments have ignored court decisions and failed to affirm Wet’suwet’en rights and title,” reads a suggested speaking point for the premier.

Part of the B.C. government communications plan for the March 2019 bahlat.

In another’s court: Delgamuukw

In 1984, after years of fruitless negotiations with the provincial and federal governments, the hereditary chiefs of the Wet’suwet’en and the neighbouring Gitxsan Nation brought forward a land title suit. It would culminate in one of the most significant rulings in Canadian law.

This case has to be part of the conversation about the Coastal GasLink pipeline, says Gordon Christie, a University of British Columbia law professor. “It’s important for Canadians to realize that that court case was not brought by the band councils,” but by the the houses of the Wet’suwet’en and Gitxsan.

At trial, the Wet’suwet’en and Gitxsan spent more than 300 days presenting evidence, relaying oral histories about their land and connection to it, sometimes in their own languages, sometimes in ceremonial songs. “It was an entire community process,” says Christie. “Everybody was part of that, the Elders and the hereditary chiefs, they all spoke at the trial.”

But “at the end of the day, it was a victory and then not a victory at the same time.”

The Supreme Court of Canada’s 1997 decision in Delgamuukw v. British Columbia confirmed the validity of oral history as evidence. Further, the court recognized Wet’suwet’en hereditary governance and that Indigenous nations’ “interests in their land predate the Crown — which is pretty obvious — and that these interests exist today, that they still have these land interests within Canadian law,” says Christie.

Even if an Indigenous nation has not established title or rights in a Canadian court, their title and rights exist.

“But the bad side of this is that the court decided that at earlier stages in the case, some technical matters had gone awry.”

The court recognized that the Wet’suwet’en and Gitxsan had title — but said that due to technical errors they would have to go back to court in order to figure out where that title applied.

“The Gitxsan and Wet’suwet’en didn’t have the resources to go through this again. It exhausted them getting through once. That’s where we’ve been since 1997. It’s clear the Gitxsan and Wet’suwet’en have title, but Canadian courts haven’t said exactly what they think it looks like exactly on the ground, where it is and so on,” says Christie.

Importantly, Delgamuukw made clear that the Wet’suwet’en hereditary chiefs are the title holders — not the band councils, which have control only over the small parcels of land allotted to reserves.

And the court suggested that the government should engage in good faith negotiations with Indigenous nations, rather than forcing the issue back to trial.

The push to put the Coastal GasLink pipeline through unceded Wet’suwet’en territory is “basically violating all the terms and conditions of the Delgamuukw court case,” Dsta’Hyl, Wet’suwet’en hereditary chief of the Lihkt’samisyu clan, told Ricochet. “I think that basically is genocide in itself.”

A few potential speaking points in the B.C. communications plan ahead of the March 2019 bahlat.

Business as usual: consultation

After Delgamuukw, the B.C. and Canadian governments continued on as if nothing had happened.

“It was clear the province of B.C. was just ignoring Aboriginal title,” says Christie. “B.C.’s position during those years was ‘Well, we don’t have to do anything about it. Until it’s established on the ground we can just ignore its existence.’ And they went ahead and gave forestry licenses to people and mining claims or stakes.”

And so another nation in B.C. went to court. In 2004, the Supreme Court of Canada recognized in Haida Nation v. British Columbia that even if an Indigenous nation has not established title or rights in a Canadian court, their title and rights exist.

“The court said that even in that kind of case you need to have consultation taking place because at some point these rights are going to be established and then you will have to have paid attention to them somehow,” says Christie.

“And that’s why consultation has become this big industry since then.”

He has no plans to act in accordance with UNDRIP in relation to Coastal GasLink.

But consultation means very little in practice, as seen in the provincial and federal governments’ insistence that it does not mean Indigenous nations have the power to veto projects.

Where an Indigenous nation has a strong claim to title, and the Crown wants to do something with a serious impact, “then consultation has to be deep, meaningful, all these words that we don’t really know exactly what they point to, but they require something serious in terms of consultation,” says Christie.

At the other end of the spectrum, “the Crown just needs to send a letter. That’s all consultation has to be. ‘We’re about to do something and that’s it.’”

“They have no decision-making power under consultation,” says Christie in reference to Indigenous nations. “They can affect what the Crown’s decision might be. That’s the best they can hope for.”

“It’s been business as usual for both levels of government.”

In words, not deeds: UNDRIP

Late last year, B.C. made headlines as the first province to embrace the United Nations Declaration on the Rights of Indigenous Peoples, passing a bill for its implementation in the province.

Premier Horgan emphasized the importance of “free, prior, and informed consent” for Indigenous Peoples, a key component of UNDRIP.

“Let’s sit down with the title holders whose land we want to conduct economic activity on and create partnerships as a way forward,” he said while speaking at the Assembly of First Nations’ Special Chiefs Assembly in December 2019.

He cited a $40-billion deal with LNG Canada as an example. LNG Canada, a joint venture between Shell and four other fossil fuel companies, is an export facility for liquefied natural gas located in Kitimat, B.C. — and it is dependent on completion of the Coastal GasLink pipeline.

The battle over Coastal GasLink is about more than a pipeline.

The UN Declaration’s call for free, prior, and informed consent would require the government “to do something very different here in this situation,” says Christie. “They’re just pushing this pipeline through. They’re not trying to get the free, prior, and informed consent of the Wet’suwet’en.”

Though Premier Horgan has stated that “reconciliation is not just words,” he has no plans to act in accordance with UNDRIP in relation to Coastal GasLink.

“Our document, our legislation, our declaration is forward looking,” he said. “It’s not retrospective.”

But even down the line, B.C.’s bill to implement UNDRIP may end up doing little to nothing.

“It’s a provincial piece of legislation that calls upon the province to bring its laws into consistency with the UN Declaration,” says Christie. “What they’re supposed to do under the act is report back to themselves that they’re making progress.”

“But there’s nothing in that still that says that things have to happen immediately or with any kind of urgency. So this could take years and years and years.”

“We just don’t know what’s going to come of that.”

Yet contained within UNDRIP is a way forward for resolving the conflict. Article 27 calls for the establishment of an independent and impartial process to adjudicate the rights of Indigenous Peoples.

“UNDRIP anticipates that the only way to actually manage those kinds of problems is to have some third-party, independent, impartial tribunal that would use both Canadian law and Indigenous law,” says Christie. “That tribunal would use whatever the Indigenous system would be, so here it would be the Wet’suwet’en system, plus the Canadian system. They would both be used by this tribunal to work out some kind of resolution.”

“There’s no other way around it. We’re not going to make any progress with the Canadian system being the one that everyone turns to because it protects the state and it tends to protect industry in this language of protecting job creation and all that kind of stuff. It’s really heavily balanced on the other side.

“If Canadian law is the only law that plays a role in this whole scenario, then that pipeline will be built.”

Two systems

The battle over Coastal GasLink is about more than a pipeline. It’s about conflicting legal systems — one newly arrived, one long settled — and which should take precedence.

“It just makes sense in terms of common sense that the Indigenous system would have priority because it’s been here for much, much longer and has much deeper roots in the area. The Canadian system is relatively new to this area, 150 years or so,” says Christie.

Under Canadian property law, the same rule generally applies in disputes over land as well, he says. “Prior interest is stronger. ”

Not only does the Wet’suwet’en legal system precede the Canadian one, but Wet’suwet’en hereditary governance and title was recognized by the Supreme Court of Canada in Delgamuukw. Naturally, it would seem, the Wet’suwet’en hereditary chiefs would have the power to make decisions about what industry can do on their territory.

“There’s really no question in Canadian law that the Wet’suwet’en hereditary chiefs are the ones who represent the houses that have the say over what happens on the territory, not the tiny reserves,” says Christie. “There’s no understanding in Canadian law that band councils are the ones who make decisions about the land.”

Yet approvals for the pipeline have been sought from band councils. One of the big promotional lines used by government and industry is that 20 out of 20 elected band councils along the pipeline route have consented to the project.

“They present these arguments to the world about how all the communities along the way have agreed to this, knowing full well that’s not really the story,” says Christie. “They create this deliberately murky picture.”

Given that the Canadian government forcibly laid down the band structure upon First Nations through the Indian Act, it should come as no surprise that band councils have only a narrow jurisdiction — they are charged with administering affairs on reserves. They also tend to be chronically under-resourced since they rely on the federal government for funding.

“Both the federal and provincial governments have a long history of knowing how to play these kinds of games. They are deeply engaged in this divide-and-conquer strategy,” says Christie. “So much of the language I’ve seen … out of the provincial government is about getting Indigenous Peoples to fight each other over jobs and that kind of thing. It works well. It’s a good strategy, it clouds the issues, makes Canadians think there is some kind of an issue within Indigenous communities that are divided. It’s a bit of a dirty tactic.”

“I know a fair number of individuals who work as band councillors or chiefs in different parts of B.C. and they’re almost all very good people doing very good work. So they get demonized too by the people who are in support of the hereditary system.... But they’re doing the best they can in the situation they find themselves in. There are very few bad actors here.”

“Behind this is the government of B.C. and the federal government playing this game, knowing that these parties will fight each other.”

“It’s a very well-orchestrated business they’ve been in the last century.”

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