[rad-green] The Wet'suwet'en, Aboriginal Title, and the Rule of Law: An Explainer

https://www.firstpeopleslaw.com/index/articles/438.php

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*February 13, 2020*

The Wet'suwet'en, Aboriginal Title, and the Rule of Law: An Explainer*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.*

   By Kate Gunn & 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.

Photo by Mike Graeme

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.

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.

Photo by Lauren Sortome

*First Peoples Law Corporation is legal counsel for Unist’ot’en. The
statements here are made on our own behalf and reflect our views on this
issue, not those of our client.*
------------------------------

*Kate Gunn, lawyer, is an associate at First Peoples Law Corporation. Kate
recently completed her Master's of Law at the University of British
Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3,
History & the Courts,"
<https://www.firstpeopleslaw.com/database/files/library/Agreeing_to_Share__K_Gunn__UBCLR.pdf>
was
published in the UBC Law Review.*

*Contact Kate <[email protected]?subject=Question>*

*Follow Kate on LinkedIn
<https://ca.linkedin.com/in/kate-gunn-98905a63> and Twitter
<https://twitter.com/KateGunn3> *

*Bruce McIvor, lawyer and historian, is principal of First Peoples Law
Corporation. He is also an Adjunct Professor at the University of British
Columbia’s Allard School of Law where he teaches the constitutional law of
Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in
Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a
Fulbright Scholar. A member of the bar in British Columbia and Ontario,
Bruce is recognized nationally and internationally as a leading
practitioner of Aboriginal law in Canada.*

*Download Bruce's bio.
<https://www.firstpeopleslaw.com/database/files/library/Bruce_McIvor_Bio_low_res_May_2019(2).pdf>*

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