“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.”
—Justice Beverley McLaughlin, 1996
BC Premier John Horgan spent much of January trying to distance himself from the unfolding controversy surrounding government and RCMP response to the Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLink pipeline project. On January 13, Horgan told a news conference that “This project is proceeding and the rule of law needs to prevail in BC.”
“The Law” on this issue is complex and not widely understood. Governments, corporations, and others with a colonial perspective often interpret the complex legal situation in a way that favours their particular interest.
1. The Hereditary (or Traditional) Chiefs speak for their Clans (extended families) and are entrusted with the care, management, and protection of the territories owned by their families. This is traditional Law.
2. Band Councils, which include elected Chiefs, were created by the Federal government under the Indian Act, which provides them with some authority to manage reserves. These bodies have no jurisdiction on the traditional territories of the people of their Band. They have no legal authority to enter into agreements with industry or governments regarding projects on traditional lands off-reserve.
3. Provincial and Federal statute Law sets out the rules according to our dominant culture (aka Settler or Colonial Law). These laws have always been used as part of the dispossession and oppression of Indigenous Peoples.
4. International Law includes declarations of the United Nations and other representative international institutions regarding Human Rights and Indigenous Rights (for example, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Governments of Canada and BC have both endorsed UNDRIP, and the BC Legislature last month passed Bill 41 directing Cabinet to incorporate the UNDRIP principles into provincial Law.
5. The Unist’ot’en and the family of Smogelgem (of the Git’umden Clan) hold the authority over their territories, which are threatened by the Coastal GasLink pipeline proposals. They are supported by the Canadian Constitution, and in principle by BC Bill 41. The UN Committee for the Elimination of Racial Discrimination has instructed the Canadian government to immediately cease the forced eviction of Wet’suwet’en peoples who oppose the Coastal GasLink pipeline, and to prohibit the use of lethal weapons — notably by the RCMP — against Indigenous peoples and to guarantee no force will be used against them. It also urged the federal government to withdraw the RCMP, along with associated security and policing services, from traditional lands.
Horgan’s statement that the “rule of law applies” is a gross oversimplification of the situation. Horgan has plenty of expert legal advice, so he must know better. I think his statement is cynical and intentionally misleading.
For more detailed legal analyses see:
- Interview with Peter Grant, counsel for Wet’suwet’en Chiefs
- Gavin Smith, West Coast Environmental Law
Mike Morrell is a fisheries biologist with special interest in Indigenous fisheries, rights, and title. He lives on Denman Island.