by Juliano Gaglione
Three weeks ago, Amnesty International issued a press release regarding LNG Canada’s Coastal GasLink pipeline, criticizing the Canadian government and Coastal GasLink (CGL) for their continued policing and criminalizing of Indigenous “land defenders”, who protect their territory from pipeline development. A call-to-action pressuring the Canadian government and CGL to allow the “Wet’suwet’en people [to] exercise their rights over their traditional territories” (Amnesty International, 2023) was released, the article addresses a conflict prompting questions of whether the Wet’suwet’en community possesses legal rights to unceded land, whether such rights are acknowledged by the Canadian government, and, more importantly, whether such conflict constitutes a threat towards Canadian-Indigenous legal relations. Through investigation, we’ll find that the Wet’suwet’en do, indeed, possess legitimate claim to unceded territories and that the Canadian government’s infringement of Wet’suwet’en title proves unjustified. Furthermore, the Wet’suwet’en pipeline conflict illustrates an existing incompatibility between Indigenous and Canadian sovereignty, resulting from the Canadian government’s unsurprising exploitation of fiduciary privileges to substantiate their own economic priorities.
A brief overview of the conflict and opposing interests at hand
The Coastal GasLink is a natural gas pipeline being developed in northern British Columbia, which partially traverses territory belonging to the Wet’suwet’en First Nation community. While all five relevant Wet’suwet’en Nation’s band councils have signed benefit agreements with CGL consenting to the use of their land for pipeline development, the nation chiefs, possessing power within a “hereditary clan system,” refuse to offer such consent. An important distinction is to be made here between an “elected band council,” the form of political leadership endowed upon First Nations communities by Canadian settlers via the Indian Act; and a “hereditary clan system,” the traditional form of political leadership within First Nations communities prior to colonial contact. Claiming to have been granted Aboriginal title (unceded land rights) in the 1997 trial, Delgamuukw v. British Columbia (Hernandez, 2020), the hereditary chiefs argue that the unconsensual yet unremitting development of the CGL pipeline is an unjustified land rights violation. As such, many Indigenous land defenders throughout the province have been protesting these proposed injustices by undermining the pipeline’s construction, and establishing roadblocks to prevent project development officials from reaching their sites (Baker, 2022). Meanwhile, standing to earn an estimated twenty-three billion CDN over the span of forty years following the pipeline’s construction, the federal government has largely endorsed the CGL pipeline ever since first commissioning the project in 2018 (Simmons, 2022)—this financial interest at least partially explains the government’s policing contributions towards the project, with RCMP officers consistently tasked with enforcing the law over supposedly criminally-behaved Indigenous protesters (Amnesty International, 2023). With that said, the pipeline is currently—as of the CGL’s latest briefing—beyond 80% complete, and will likely see full completion in the near future regardless of opposition efforts (CGL, 2023).
Upon inspection of Delgamuukw v. British Columbia (3 SCR 1010, 1997)—a supreme court case resulting from Delgamuukw’s appeal of a previously failed trial—it’s clear that the hereditary chiefs of the Wet’suwet’en First Nations were granted Aboriginal title over their territory in 1997, resulting mainly from the chief justice’s reconsideration of the Wet’suwet’en oral tradition, “kungax,” as valid historical evidence of pre-colonial territorial occupation. In remarking upon the original trial, Chief Justice Lamer stated that “the trial judge expected too much of the oral history of the appellants,” and that “if oral history cannot conclusively establish pre-sovereignty occupation of land, it may still be relevant to demonstrate that current occupation has its origins prior to sovereignty” (3 SCR 1010, 1997). Indeed, in the following trial, such oral history would be found sufficient in illustrating a pre-sovereign origin of occupation, granting Aboriginal title to the hereditary chiefs who brought the case to the supreme court. As a result, the Wet’suwet’en chiefs, by possessing Aboriginal title, possess land rights since 1997 characterized as (1) inalienable; (2) recognized by the Royal Proclamation of 1763; (3) communally held; (4) limited in use to actions which are “reconcilable with the nature of the claimants’ attachment to those lands” (i.e., forbidding ecologically negligent land use); and (5) protected by section 35 the Constitution Act of 1982 (3 SCR 1010, 1997). Clearly, then, Wet’suwet’en protestors are correct in their assertion that hereditary chiefs are owed unceded land rights as per the result of Delgamuukw v. British Columbia.
With this being said, there are additional details within Delgamuukw v. British Columbia, stipulating the circumstances in which Crown infringements of Aboriginal title may be justified (“constitutionally recognized aboriginal rights are not absolute and may be infringed by the federal and provincial governments…”). As such, we should consider whether the Canadian government could find justifications for the infringed use of Wet’suwet’en territory In constructing the CGL pipeline. In the document, the two tests of potential justification include: (1) furthering a compelling and substantive legislative objective; and (2) acting as is consistent with “the special fiduciary relationship” between the Crown and Indigenous peoples (e.g., “the development of agriculture, forestry, mining, and hydroelectric power,” “general economic development,” “protection of the environment,” and the “building of infrastructure and settlement of foreign populations”) (3 SCR 1010, 1997). First then, the CGL project does not stand to contribute towards any immediately notable legislative objective, and so cannot be warranted under the first test of justification. Second, while an argument might be made for the infrastructure, employment, and “economic development” produced within Indigenous communities by the CGL pipeline, the project also contributes towards ecological destruction and population displacement while providing the Indigenous communities with only a fraction of the total economic value estimated of the project (Simmons, 2022)—thus rendering any claims of the pipeline’s contributions towards a productive fiduciary relationship as tenuous and one-sided, and illustrating that the CGL pipeline is proven unjustifiable by both tests. As such, the use of the Wet’suwet’en land by federally— commissioned enterprises would rely upon the full and lawful consent of Aboriginal title holders— in this case, the hereditary chiefs.
With the Canadian government’s infringement of Wet’suwet’en land rights thus proven unjustified, their use of police action to enforce lawful compliance within Wet’suwet’en communities while refusing to hold themselves accountable to their own legal abidance of Aboriginal title demonstrates a self-contradictory logic, which effectively undermines the legal precedent meant to support Canadian-Indigenous relations in a broader sense. The federal government’s policing, surveilling, and criminalization of the Wet’suwet’en community via RCMP police action throughout the pipeline’s construction, negligent of the community’s title rights, is indicative of whose interests are most readily maintained and whose most undermined within Canadian-Indigenous legal confrontations. In criminalizing land defence and mobilizing police action against Indigenous protestors, and thus in transgressing the principles of Aboriginal title belonging to the Wet’suwet’en as is clarified within Delgamuukw v. British Columbia, the federal government implicitly retracts the legitimacy of legal frameworks developed to render Canadian-Indigenous relations sustainable and equitable. As Queen’s University professor Michael Luoma remarks on the federal government’s legal maltreatment of Indigenous communities in “Collective Self-Determination, Territory, and the Wet’suwet’en,” “if we cannot provide a consistent [note—consistent] answer to questions, then from a moral and legal perspective, the future relationships between Canada and many other Indigenous nations are in danger of being carried out in an ad hoc or arbitrary manner” (2022). Indeed, the negligent treatment of the Wet’suwet’en community and their legal history, if persisted upon with distinct nations, could further obfuscate Indigenous relations throughout the country. As such, steps should be taken towards the increased acknowledgement of Indigenous communities and the legal rights they are owed, although doing so may, at times, be of great expense to the Canadian government.
Amnesty International (2023, January 6). Canada: Indigenous land defenders criminalized, surveilled and harassed as pipeline construction continues on Wet’suwet’en territory. Amnesty International. Retrieved January 20, 2023, from https://amnesty.ca/news/joint-press-release/canada-indigenous-land-defenders-criminalized/.
Baker, Rafferty (2022, February 26). A who’s who of the Wet’suwet’en pipeline conflict. CBC. Retrieved January 20, 2023, from https://www.cbc.ca/news/canada/british-columbia/wetsuweten-whos-who-guide-1.5471898.
Coastal GasLink (2023, January 12). Coastal GasLink working with Indigenous communities and regulators to cross waterways safely. Coastal GasLink. Retrieved January 20, 2023 from https://www.coastalgaslink.com/whats-new/news-stories/2023/2023-01-12-coastal-gaslink-working-with-Indigenous-communities-and-regulators-to-cross-waterways-safely/.
Delgamuukw v. British Columbia, 3 SCR 1010 (1997). https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do
Hernandez, Jon (2020, February 13). ‘We still have title’: How a landmark B.C. court case set the stage for Wet’suwet’en protests. CBC. Retrieved January 20, 2023, from https://www.cbc.ca/news/canada/british-columbia/delgamuukw-court-ruling-significance-1.5461763.
Luoma, Michael (2022, February 23). “Collective Self-Determination, Territory and the Wet’suwet’en: What Justifies the Political Authority of Historic Indigenous Governments over Land and People” in Canadian Journal of Political Science, 55(1), 19-39. Retrieved January 20, 2023. https://doi.org/10.1017/S0008423921000913.
Simmons, Matt (2022, November 24). Is B.C.’s $6 billion commitment to Coastal GasLink and LNG Canada still economically viable?. The Narwhal. Retrieved January 20, 2023, from https://thenarwhal.ca/bc-lng-canada-cgl-economics/.