by Savannah Carr-Wilson
RCMP action against Wet’suwet’en hereditary chiefs opposing the Coastal GasLink pipeline has generated a wave of support and led to solidarity blockades across Canada. To understand the events of the past few weeks, and their future significance, it is helpful to re-examine Canada’s contingent or “prove-it” approach to Aboriginal rights and title, versus an inherent approach to understanding Indigenous peoples’ rights. The Wet’suwet’en movement signals both the waning acceptability of Canada’s “prove-it” approach, and the need for government to develop a new path forward for reconciling Indigenous land claims that is based on recognition of and respect for inherent rights.
The Wet’suwet’en movement
In early February, the RCMP arrested and forcibly removed Wet’suwet’en hereditary chiefs and their supporters who were opposing construction of the Coastal GasLink pipeline through part of Wet’suwet’en territory. The RCMP were enforcing an injunction Coastal GasLink obtained December 31 from the BC Supreme Court to clear the way for pipeline construction. The Wet’suwet’en hereditary chiefs responded soon after by issuing a notice evicting Coastal GasLink from parts of their territory and stating that the company had violated the Wet’suwet’en law of trespass.
The RCMP’s actions led to a groundswell of support across Canada, spurring rail and road blockades in solidarity with the Wet’suwet’en and disrupting rail transport. This echoed events of January 2019, when solidarity rallies were held in several Canadian cities after the RCMP entered Wet’suwet’en territory to enforce an interim injunction related to the Coastal GasLink pipeline.
As of February 27, 2020, Coastal GasLink agreed to pause construction for two days while the Wet’suwet’en hereditary chiefs met with provincial and federal ministers to discuss how to move forward. The outcome of the talks is not yet known.
Canada’s contingent, “prove-it” approach to Indigenous rights
To understand the events of the past few weeks and their significance, it is helpful to re-examine Canada’s contingent, “prove-it” approach to Indigenous rights, which stands in stark contrast to an “inherent” view of Indigenous rights.
First Nations have lived in what we now know as British Columbia for thousands of years. British Columbia has existed for a far shorter time. Unlike the rest of Canada, few treaties were signed between the colonial government and Indigenous peoples in BC, meaning most Indigenous land was never ceded.
Despite the fact that most First Nations in BC never signed a treaty or otherwise surrendered their land, Canada takes a “prove-it” approach to their rights, grounded in colonial concepts such as the doctrine of discovery. Under Canadian law, Indigenous peoples are responsible for proving the existence of any Aboriginal right they claim, including “Aboriginal title” to land. The assumption is that an Aboriginal right doesn’t exist unless the courts or state government recognizes it. In other words, Indigenous peoples’ rights are contingent rights – they are rights contingent on state recognition. Notably, this is also the approach the BC Supreme Court judge took in the Dec 31 injunction decision with respect to Indigenous law – finding that while Indigenous law exists, for it to become an “effectual” part of Canadian law it needs to be recognized by the state or a judge (for further analysis of this aspect of the decision, see West Coast Environmental Law’s excellent blog).
This stands in stark contrast to another way of viewing Indigenous rights – as inherent rights, which exist by virtue of the fact that Indigenous Nations – with their own legal systems, cultures, and governments – existed in BC long before the arrival of Europeans. While the Canadian state may choose to recognize such inherent rights, this is not necessary for their existence. In a recent Tyee article, Wet’suwet’en Hereditary Chief Na’Moks framed this well. “At one point they said, ‘You’ve got to prove your strength of claim,” Chief Na’Moks said, referring to the BC government. “I’d like to see their strength of claim. We know ours. We’ve been here for thousands of years.”
Frustrating implications of the “prove-it” approach
Canada’s contingent, “prove-it” approach means that First Nations in BC have had two predominant options for resolving their rights, including Aboriginal title to land – going to court, or the modern treaty process. Neither has been very satisfactory for Indigenous peoples.
The Wet’suwet’en hereditary chiefs have already had their own challenging experience with the court system. The Wet’suwet’en hereditary chiefs, along with the Gitxsan, spent millions of dollars during 13 years in court fighting for their Aboriginal title, and took the case all the way up to the Supreme Court of Canada. In its 1997 landmark Delgamuuwk decision, the Supreme Court of Canada found that Wet’suwet’en title and rights have never been extinguished. However, the Court did not make a declaration of Wet’suwet’en Aboriginal title to a specific area. Instead, the Court sent the case back to trial because of a defect in the pleadings.
The Tsilhqot’in Nation remains the only First Nation in Canada to successfully obtain a declaration of Aboriginal title in court. It took decades of litigation for the Tsilhqot’in to obtain this declaration, which the Supreme Court of Canada granted in 2014.
Similarly, the BC Treaty process, created in 1993, has not functioned well for many First Nations and few treaties have been finalized.
Need for a new approach based on recognition of and respect for inherent rights
As neither the courts nor the treaty process have offered accessible or satisfactory options for reconciling Indigenous rights such as rights to land, it is unsurprising that Indigenous peoples such as the Wet’suwet’en hereditary chiefs are pursuing the options that they see remaining to protect their land from major resource projects – by asserting their inherent title and Indigenous laws through what Canada views as ‘direct action.’
Overall, the Wet’suwet’en movement is a broader signal of the waning acceptability of Canada’s contingent, “prove-it” approach, and the need for government to develop a new path forward for reconciling Indigenous land claims that is based on recognition of and respect for Indigenous peoples’ inherent rights.
Influential bodies such as the UBCIC and UN Committee on the Elimination of Racial Discrimination have echoed this call in recent statements about the events in Wet’suwet’en territory, urging government to respect the inherent rights of Indigenous peoples and act in a manner consistent with requirements in the United Nations Declaration on the Rights of Indigenous Peoples surrounding free, prior, and informed consent.
Furthermore, prominent politicians such as Independent MP Jody Wilson-Raybould have outlined the need for this change. In a February 16 Global News interview, Jody Wilson-Raybould stated that “this situation that we’re seeing in Wet’suwet’en territory, as we’ve seen in other territories around major resource development projects, are going to continue to happen until we address the fundamental underlying reality of the inherent right of self-government of Indigenous Peoples and ensure that Indigenous Peoples can finally make their way and see themselves in our constitutional framework.”
What now remains to be seen is what broader learning government may take from the Wet’suwet’en movement, and whether it uses these lessons to begin to chart a new path moving forward with Indigenous peoples.
Michael Asch & Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R v Sparrow” (1991) 29 Alta L Rev 498.
Lorraine Land & Matt McPherson, eds, Aboriginal Law Handbook, 5th ed (Toronto: Thompson Reuters Canada, 2018) at 46-50.