The question of who represents Indigenous nations been outstanding for 20 years, say lawyers
Protest blockades on railway lines have sprung up all over Canada in support of the Wet'suwet'en Hereditary Chiefs and their opposition to the Coastal Gaslink natural gas pipeline project.
Lawyers from British Columbia whose practices focus on Indigenous law and negotiations between Indigenous peoples and governments and resource developers, told Canadian Lawyer the Wet-suwet-en impasse has been brewing since the 1997 Supreme Court of Canada decision Delgamuukw v. British Columbia.
“Everyone's had notice since the 1980s, when the action was filed, that in the case of the Wet'suwet'en, it's the hereditary chiefs that are the holders of Aboriginal title,” says Cynthia Callison, founding partner of Callison & Hanna, a Vancouver law firm which represents Indigenous governments in legal matters, including land claims and environment and resource management.
In Delgamuukw, the Wet-suwet-en Hereditary Chiefs had claimed ownership and jurisdiction over vast tracts of lands in B.C. The Court ordered a new trial, as the court found the trial judge, improperly, did not provide independent weight to the oral history of the Wet'suwet'en – but the trial hasn’t happened yet.
In September 2018, Coastal Gaslink announced it had inked agreements with 20 First Nations band councils, five of which were from the Wet'suwet'en Nation, and the opposition to the $6-billion, 670-kilometre pipeline is being instigated by a majority of the Wet'suwet'en Hereditary Chiefs, reported the CBC.
Robert Janes is principal at JFK Law Corporation in Victoria and a litigator who focuses on constitutional, Aboriginal and commercial litigation. Since the Delgamuukw decision, Janes says, a leadership problem has existed, which the provincial and federal governments have yet to remedy: The Indian Act limits band-council powers to reserves. He says the issue was addressed in the 1996 SCC case R. v Lewis, where members of the Squamish Nation had tried to overturn the illegal fishing convictions of three members who were fishing outside of the reserve by arguing a Squamish Band Council by-law allowed the practice.
“The Supreme Court of Canada said your powers end at the reserve boundary,” Janes says.
And “the legal pedal hits the metal” with 2014’s Tsilhqot’in Nation v. British Columbia, says Janes. In Tsilhqot’in, the SCC said it was the Tsilhqot’in Nation and not their associated bands who had Aboriginal title.
“So, actually the only case that’s recognized Aboriginal title has specifically said that it’s not the bands that hold title, it’s the larger nation,” he says.
“So from a normal, legal point of view, it's actually hard to see the band council as representative,” he says. “Now, from a practical point of view, they tend to be the only sort of really well-structured governments around. And so companies, governments, and even the courts tend to say, ‘Look to the band councils.’ But it's not consistent with the Indian Act.”
Through Delgamuukw and Tsilhqot’in, the SCC demonstrated that Bands “are probably not” Aboriginal title holders, nor governments of “traditional nations,” says Janes.
“And this is a legal problem that's been out there and no one has really tried to sort it out,” he says.
When it comes to Indigenous governance structures, Wet'suwet'en’s is among the more complex, says Roy Millen, a Vancouver partner at Blake Cassels & Graydon LLP who practices Aboriginal law, commercial litigation and international trade.
“There are challenges when governance is not agreed within the nation,” Millen says. “Wet'suwet'en is a case in point.”
The complexity makes it difficult for those who seek the nation out for consultation, he says.
“Everybody should respect each nation’s ability to govern itself. I don't think self-government, as a concept, is controversial. But how that is to be respected can be more challenging when the nation itself is in internal dispute about that. And the Wet'suwet'en is presently in an internal dispute about that,” he says.
Both Band Councils and Hereditary Chiefs were invited to participate in the regulatory and legal process, which preceded the provincial government’s authorization of the project, and the Chiefs who are now protesting chose not to participate, Millen says. It is unfair for one group within the many making up the Wet'suwet'en nation to veto the project, he says.
“To me, reconciliation requires engagement and requires both all participants and all interested people to participate in dialogue,” he says. “And it is problematic for someone to refuse to participate in dialogue and then to create a physical blockade to a permitted project.”
Missing in the media coverage of the blockades and protests is recognition of the fact B.C. is in “a completely different legal realm” than the rest of Canada, due to the lack of signed treaties, says Callison, who is a member of northwestern B.C.’s Tahltan Nation.
“The big issue in British Columbia is the continued denial of aboriginal title by the provincial governments and also by Canada,” says Darwin Hanna, also a founding partner of Callison & Hanna and a lawyer whose practice focuses on land claims, self-government and business law. Hanna, who also practises in the Northwest Territories, contrasts his own province with the dynamic in its northern neighbour, where he says the system operates more equitably.
“In the Northwest Territories, they have a true government-to-government relationship, in that you have the government of Canada you have the government of Northwest Territories and you have Indigenous governments,” he says. “In respect to any decisions that affecting the land, water and resources, nothing moves forward without each governing body providing their consent to any development.”
In response to calls for the Hereditary Chiefs and other protestors to respect the rule of law, Hanna notes it was the rule of law which mandated residential schools, mandated forced movement and was used “as a vehicle to allow settlers to pre-empt lands,” including with the conferring of major forestry licenses to companies not controlled by Indigenous people.
“You have this whole history of colonization that has benefited from the so-called ‘rule of law’ to favour the settlers and governments to the detriment of indigenous peoples,” Hanna says. “Now we have a situation in B.C., where you have the continued denial [of Aboriginal title] which has given rise to this conflict. The government has known for quite a few years now that they never received consent of the Wet'suwet'en and now they're trying to advance this project, and it sort of begs the question regarding the intentions of the crown to act honourably with respect to the implementation of Aboriginal title.”
The B.C. and Canadian governments have had 20 years to negotiate an agreement which brings together traditional leadership with band councils and defines the roles of bands and traditional governance, says Janes. He adds another path to an improved state of affairs would be getting Delgamuukw back in court.
