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Why We Must Do More To Recognize The Application Of Indigenous Law

Above photo: Gavin Smith.

The invisible thread?

In the Supreme Court of Canada’s 1996 decision in R v Van Der Peet, Justice Beverley McLachlin[1] famously made reference to a “golden thread”:

The history of the interface of Europeans and the common law with aboriginal peoples is a long one. As might be expected of such a long history, the principles by which the interface has been governed have not always been consistently applied. Yet running through this history, from its earliest beginnings to the present time is a golden thread – the recognition by the common law of the ancestral laws and customs of the aboriginal peoples who occupied the land prior to European settlement.

For Wet’suwet’en people reading the BC Supreme Court’s December 31, 2019 decision in Coastal GasLink Pipeline Ltd v Huson, it may have seemed more like an “invisible thread.” The decision presents several obstacles to recognition of Indigenous law within the Canadian legal system, which must be overcome if the notion of the golden thread – and indeed the language of reconciliation – is to be meaningfully applied on the ground.

The context

As we have previously addressed, a year ago the Wet’suwet’en Nation was in the international spotlight when an armed RCMP force entered its territories and arrested 14 people to enforce an interim injunction obtained by Coastal GasLink Pipeline Ltd. (“CGL”).

All contempt charges against those arrested were later dropped (two assault charges are proceeding). An Access Protocol Agreement was negotiated in April 2019 to allow access to the area pursuant to the interim injunction, and a Court hearing of CGL’s application for an interlocutory injunction occured in June 2019.

On December 31, 2019, the Court made its decision, granting CGL an interlocutory injunction and enforcement order, which effectively prohibits actions that would impede CGL’s access to the area to construct the pipeline. Wet’suwet’en Hereditary Chiefs subsequently issued a notice evicting CGL from specified Wet’suwet’en House territories, causing CGL workers to leave the area. CGL then posted notice of the injunction order, as a precursor to potential enforcement.

The Court’s decision has serious and immediate implications given the armed enforcement by the RCMP that ocurred the last time around.

Implications for how Indigenous law is addressed in Canada’s legal system

The CGL case focused in large part on whether and how the Court would address the role of Indigenous law because, as summarized by the Court:

[51] The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories in which Sections 7 and 8 of the Pipeline Project are located. They submit that the plaintiff is in their traditional territory in violation of Wet’suwet’en law and authority and their efforts in erecting the Bridge Blockade were to prevent violation of Wet’suwet’en law. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority.

The Court was in relatively uncharted waters in this regard, because the Court is not an expert in Wet’suwet’en law and also because – despite the longstanding acknowledgement of Indigenous law within the Canadian legal system – Canada’s courts are still struggling with how to address these cases. As the Court stated in Coastal GasLink, “[t]he reconciliation of the common law with indigenous legal perspectives is still in its infancy.”

Unfortunately, the Court’s approach in the Coastal GasLink decision presents at least four obstacles to giving practical meaning to the “golden thread” of recognition of Indigenous law within the Canadian legal system. This blog considers each obstacle in turn.

1. The Court says that Indigenous law is not “effectual” without recognition by the state or a judge

In the Coastal GasLink decision, the BC Supreme Court’s overarching response to the application of Indigenous law is as follows:

[127] As a general rule, indigenous customary laws do not become an effectual part of Canadian common law or Canadian domestic law until there is some means or process by which the indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as aboriginal title or rights jurisprudence or statutory provisions: Alderville First Nation v. Canada 2014 FC 747, para. 40.

[128] There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law.

The Court found that facts on the Wet’suwet’en legal perspective could be admitted as evidence to consider in the case, rather than applying as law.

The most obvious obstacle this poses to recognition of Indigenous law is that, in a practical sense, it is not really treated as law at all, but rather as evidence. Yet the Supreme Court of Canada has urged us to take Indigenous law more seriously than that. In R v Marshall, the Supreme Court of Canada quotes with approval this statement by legal scholar John Borrows:

Aboriginal law should not just be received as evidence that Aboriginal peoples did something in the past on a piece of land. It is more than evidence: it is actually law. And so, there should be some way to bring to the decision-making process those laws that arise from the standards of the indigenous people before the court.

Indeed, the Federal Court recently stated in Pastion v Dene Tha’ First Nation that:

Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land. Chief Justice McLachlin of the Supreme Court of Canada wrote, more than 15 years ago, that “aboriginal interests and customary laws were presumed to survive the assertion of sovereignty”… Canadian courts have recognized the existence of Indigenous legal traditions and have given effect to situations created by Indigenous law, particularly in matters involving family relationships.

The Court in Pastion added that: “The Truth and Reconciliation Commission of Canada pointed out that the recognition of Indigenous peoples’ power to make laws is central to reconciliation.”

Furthermore, the ruling of the BC Court of Appeal in Saik’uz First Nation and Stellat’en First Nation v Rio Tinto Alcan Inc confirmed that Aboriginal title and other Aboriginal rights “…exist prior to declaration or recognition. All that a court declaration or Crown acceptance does is to identify the exact nature and extent of the title or other rights.” The Supreme Court of Canada is clear that Aboriginal title is bound up with the application of Indigenous law, stating in Delgamuukw that “aboriginal title originates in part from pre-existing systems of aboriginal law.”

In other words, Indigenous law – and the constitutionally-recognized Aboriginal title and rights with which it is intertwined – applies right now.

If, as the Coastal GasLink decision says, Indigenous law is ineffectual in Canadian domestic or common law unless recognized by the state or a court, how does it infuse Aboriginal title and rights that exist regardless of court declaration or state recognition? How is it, in a meaningful sense, “part of the law of the land”?

It is not enough to say that an Indigenous nation must simply prove its title and rights in Court and then its laws will become “effectual.” As noted on this blog and elsewhere, the Wet’suwet’en are a classic example of how the Crown and the Canadian legal system have overseen a long-term and continuing failure to give effect to the promised recognition of Aboriginal title and Indigenous law.

After millions of dollars spent on some 13 years in court, including 318 days of presenting evidence at trial, the Wet’suwet’en together with the Gitxsan won a landmark title victory in the Supreme Court of Canada’s 1997 Delgamuukw decision. The Court ordered another trial due to the trial judge’s improper rejection of important Indigenous evidence, but explicitly encouraged good faith negotiation rather than further litigation.

More than two decades later, it is undeniable that the provincial and federal governments (i.e. the Crown) have not done enough to advance such negotiations. As we have previously detailed, the Crown in fact continued to make legal arguments to minimize and weaken the meaning of Aboriginal title, such as the arguments that were rejected in the Supreme Court of Canada’s 2014 decision in Tsilhqot’in Nation v British Columbia.

It is manifestly unfair to expect the Wet’suwet’en, and Indigenous nations across the land, to continue assembling the overwhelming financial, organizational and emotional resources needed for marathon litigation before their laws and jurisdiction will be taken seriously as required under Canada’s constitution.

In this context, the implication of the CGL decision is that the Indigenous laws underlying Aboriginal title and rights are left in an indefinite state of limbo, with their practical application in the Canadian legal regime denied.

2. The Court considers lack of unanimity among members of an Indigenous nation to decrease the weight of Indigenous law

Even when considered as evidence, the Court holds that Wet’suwet’en law “is of limited assistance” in reaching its decision in Coastal GasLink because the Court finds that (i) there are disagreements among Wet’suwet’en members about whether CGL should be constructed, and (ii) there are jurisdictional tensions within the Wet’suwet’en Nation.

For example, the Court quotes Wet’suwet’en members with business interests in CGL who support the project’s construction, and notes tensions between Indian Act Band Councils and the Office of the Wet’suwet’en. In this light, the Court states:

[137] All of this evidence suggests that the indigenous legal perspective in this case is complex and diverse and that the Wet’suwet’en people are deeply divided with respect to either opposition to or support for the Pipeline Project.

[138] It is difficult to reach any conclusions about the indigenous legal perspective, based on the evidence before me and I tend to agree with the submission of the plaintiff that the defendants are posing significant constitutional questions and asking this court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

The notion that disagreement about a project within a community would reduce the weight of Indigenous law is problematic because it imposes an unfair double standard on Indigenous law.

Rarely if ever is a group of people unanimous with regard to a project, or any other proposal for that matter. In Canadian law, disagreement among citizens is not generally recognized as relevant to whether a decision-maker has legal authority to do something.

For example, no one would succeed in a legal challenge to the federal government’s approval of the Trans Mountain pipeline on the basis that Canadians disagree about whether to build the project (as we have explored elsewhere, there are other more compelling grounds for ongoing challenges of the Trans Mountain approval).

The same must be true for Indigenous law: what is relevant is whether the appropriate legal processes were followed for a decision to be made, regardless of potential disagreement among individuals.

However, the Court in Coastal GasLink is also not sure whether the appropriate Wet’suwet’en legal processes were followed. The decision states that it is unclear whether alleged jurisdictional tensions within the Nation result from “an attempt by the plaintiff [CGL] to circumvent the Wet’suwet’en legal process or it part [sic] of the continuing evolution of Wet’suwet’en governance.”

The Court is certainly in a delicate and difficult position in this regard, because it is not an expert in Wet’suwet’en law and understandably wishes to avoid making inappropriate or incorrect pronouncements regarding an Indigenous legal regime.

However, it is apparent from several decades of litigation that the Wet’suwet’en’s Clan- and House-based hereditary governance system is the Indigenous legal foundation for Wet’suwet’en title. This was accepted by the Supreme Court of Canada in Delgamuukw, which described the system of Clans and Houses with Hereditary Chiefs as “the fundamental premise of both the Gitksan and the Wet’suwet’en peoples.” It was also affirmed in greater detail by the BC Supreme Court in Canadian Forest Products Inc v Sam:

[14] … It is the relationship to particular lands that defines the social structure of Wet’suwet’en society, that places the land as the foundation of cultural identity, and that determines the structure of governance.

[15] The Wet’suwet’en occupation and use of land is organized by the clan and house system upon which the law and essential social structure is ultimately based. The five Wet’suwet’en clans are each composed of several houses, 13 in all. A house is a matrilineage of people related through their mothers. Each house has one or more territories which together comprise the Wet’suwet’en territory. Each house has a chief and a sub-chief who collectively make up the head chiefs of the Wet’suwet’en. Each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief is given a duty to protect. The rights and responsibilities are confirmed, coordinated, and directed to the common good, in other words, governed, through the feast.

[16] The feast is central to Wet’suwet’en society and government. As acknowledged in Delgamuukw at para. 14, the feast has a ceremonial purpose but is also used for making important decisions. Today, it is used to make clear who has succeeded to the chiefs’ titles, which are associated with jurisdiction over discrete Wet’suwet’en territories. Importantly, the feast confirms the relationship between each house and its territory and confirms the boundaries of each territory (Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470 at 608 (B.C.C.A.) [Delgamuukw BCCA]. It operates as a forum in which Wet’suwet’en law is both enacted and upheld. It is through the feast that the various houses and clans interact at an official level. Territories are important to the feast as the host clan gathers goods and food for the feast from its territories.

[17] Each chief is responsible for the lands and resources within his or her territory.

Since those Hereditary Chiefs have clearly expressed opposition to the CGL project, this should presumably be given significant weight as an expression of Wet’suwet’en governance, in light of the existing legal recognition of that system.

It would certainly be open to the Court to consider evidence about whether the Wet’suwet’en had, using Wet’suwet’en legal processes, decided to change its previously-recognized governance system. However, it is concerning for the Court to simply assign little weight to Wet’suwet’en law as a factor in its decision and defer the issue to another day, as a result of the cited tensions, since this ultimately negates the application of Wet’suwet’en law in the circumstances.

3. The Court says that controlling access to territories through a blockade is not condoned by Indigenous law

The Court further finds that the actions of the defendants are not an expression of Indigenous law because “[t]here is also no evidence that blockades of this kind are a recognized mechanism of dealing with breaches of Wet’suwet’en law.”

Instead, the Court characterizes the actions as “…self-help remedies, which are not condoned in Canadian law or indigenous law.” As a result, the Court concludes that:

An injunction order will not directly impact the ability of the defendants to enjoy the use of the lands or in any way restrain Chief Knedebeas’ exercise of authority in terms of traditional Wet’suwet’en governance. On the contrary, such an order would merely restrain the defendants from engaging in self-help remedies that are contrary to the rule of law and which do not appear to be part of Wet’suwet’en legal tradition, according to the affidavit materials before me on this application.

While it is true that blockades are rarely a preferred outcome from anyone’s perspective, to suggest that a nation’s decision to control access to its territories is “not condoned” by its own law does not accord well with the existing Canadian law on Aboriginal title.

Indeed the legal test for Aboriginal title established in Delgamuukw requires proof of “the intention and capacity to retain exclusive control” of the land at the time of the Crown’s assertion of sovereignty. The Supreme Court of Canada summarized in Tsilhqot’in that, for the purposes of meeting this aspect of the legal test for Aboriginal title, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group.”

How is it that an action to exclude others from the land in the past would be a legal foundation for establishing Aboriginal title, which as noted above is inextricably linked with the exercise of Indigenous law, while according to the Court in Coastal GasLink any such action in the modern day is not condoned by Indigenous law and must instead be an unlawful “self-help remedy”?

Furthermore, the Supreme Court of Canada is clear in Tsilhqot’in that Aboriginal title “confers the right to use and control the land” and that “Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group.”

How is it that an action to prevent others from accessing the land without consent could be a valid exercise of Indigenous law in the modern day, if a court had declared Aboriginal title, whereas without such a court declaration the action can only be an unlawful self-help remedy?

These questions raise serious doubts about the notion that controlling access to territories, for example through a blockade, is not condoned by Indigenous law generally or Wet’suwet’en law specifically.

In this light, it is troubling for the Court to conclude that granting CGL its injunction and thus overriding the refusal of Wet’suwet’en consent would in no way impact Wet’suwet’en hereditary authority and governance. The Wet’suwet’en assert title over their territories based in no small part on their system of laws and governance. The ability to control access to the land is a key part of exercising Aboriginal title. Therefore to override a Wet’suwet’en decision about access to the land is to impact its exercise of legal authority and governance.

4. The Court does not include recognition of Indigenous law and governance as a factor to consider in the broader public interest when making an injunction decision

Injunction hearings are a difficult legal forum for Indigenous peoples to have their laws, title and rights upheld (this has been well documented, for example, by the Yellowhead Institute). However, particularly concerning in Coastal GasLink is how the Court approaches consideration of the public interest in weighing the “balance of convenience,” which is part of the legal test for an injunction.

The Court begins its analysis of the issue by noting that “Public interest has been found to be a significant factor in weighing the balance of convenience.” On the one hand, the Court considers the economic benefits of CGL and support for the project among some of the Wet’suwet’en, as well as upholding the rule of law with respect to the permits that CGL has already obtained from the Crown. On the other hand, the Court considers the defendants’ submission that “the issuance of an interlocutory injunction will restrain Chief Knedebeas from exercising his lawful power and authority over Dark House territory.”

Ultimately, the Court concludes: “In my view, public interest must [be] viewed more broadly than the public interest to specific to [sic] Dark House and the public interest in this case weighs heavily in favour of granting the interlocutory injunction.”

Yet the recognition of Indigenous governance within the Canadian legal system is emphatically not an issue specific to Dark House or the Wet’suwet’en. We all have an interest in the recognition of Indigenous governance, both to address colonial injustices and to uphold the law in its fullest sense (including the Canadian constitution).

This broad public interest is evident in the federal and provincial governments’ commitments to implement the UN Declaration on the Rights of Indigenous Peoples. It is also apparent in the rallies and actions supporting the Wet’suwet’en that have occurred across British Columbia, Canada and indeed internationally. This is a responsibility that concerns us all.

Meaningfully recognizing Indigenous law within the Canadian legal system is assuredly not a simple undertaking, but one thing is absolutely clear: we cannot afford to delay any longer.

Gavin Smith is a staff lawyer and a resident on Wet’suwet’en territories in Smithers, BC.

[1] Justice Beverley McLachlin, as she then was, wrote in dissent in R v Van Der Peet (i.e. she was not in agreement with a majority of the Court) but the dissent related to different issues, not to her statement about the “golden thread.” The Supreme Court of Canada has been clear in its acknowledgement of Indigenous law.

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