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Coastal GasLink Conflict Exposes Deep Legal Issues on Indigenous Sovereignty, Analysts Warn

The RCMP’s mandate to enforce Canadian law is clashing with Wet’suwet’en First Nation sovereignty and opposition to the Coastal GasLink project’s development, raising deeper questions about how the two legal systems can coexist on the same landmass.

Members of the Wet’suwet’en community opposing the pipeline were recently arrested by RCMP, whose force tactics using guns, dogs, and chainsaws to evict Wet’suwet’en people from their land have been widely condemned. In one instance, “an officer, armed with an assault rifle and clad in military-style gear,” brandished an assault rifle to arrest “five peaceful land defenders” who displayed no resistance, reports The Narwhal.

The RCMP says its authority stems from an injunction issued by B.C. Supreme Court Justice Marguerite Church in December 2019, which prohibited anyone from “physically preventing, impeding, restricting or in any way physically interfering” with access to the road leading to the site, reports CBC.

But according to University of Ottawa law Professor Aimée Craft, injunctions are not meant to be interpreted as a permanent ruling. They’re supposed to be used as temporary tools to prevent harm “until there’s an ability to fully flesh and make a whole decision based on the facts and the law.” Craft said this injunction has not addressed “the conflict of laws issue between Indigenous legal orders and… Western legal systems.”

The B.C. judge concluded that “Wet’suwet’en law is irrelevant and that reliance on such law is an illegal ‘self-help’ remedy,” writes University of New Brunswick law professor Barry Perryman, in an opinion piece for the Toronto Star. But by taking this approach, he adds, Church’s ruling failed to answer important questions about the foundation of Canadian law and its relevance to other legal systems.

“In this case, the Coastal GasLink pipeline is illegal under Wet’suwet’en law and international law because it does not have the free, prior and informed consent of the hereditary chiefs of the Wet’suwet’en nation,” he says.

Coastal GasLink reached agreements with Wet’suwet’en band councils to construct the pipeline, but no such agreement was made with the Hereditary Chiefs, who are recognized as the traditional form of government within the Wet’suwet’en First Nation. Contradicting the Hereditary Chiefs by holding the council agreement as a green light for continued development that trumps the Hereditary Chiefs’ actions “shows a lack of recognition from Canada of traditional government systems,” says Cultural Survival.

Under Canadian law, Perryman adds, a “Supreme Court ruling [grants] authority to Indigenous people to hold ‘Aboriginal title’ to their traditional territory but only in relation to the Crown’s sovereignty,” which is based on a “doctrine of discovery” that asserted that the land was “empty” prior to European colonization. 

Although this is evidently incorrect, the doctrine of discovery has never been renounced in Canadian courts, “nor have courts explained how its inherent racism can be justified in a modern constitutional democracy,” says Perryman. Indigenous people instead bear the burden of proving Aboriginal title to their land, after which Canadian law may confer on them what Perryman describes as “a lesser form of ownership that may be infringed by governments.” 

Although the Wet’suwet’en Hereditary Chiefs followed this process to gain recognition of their title and rights in a partial Supreme Court victory, they were asked to restart and a new trial was ordered. Meanwhile, B.C. granted permits for the Coastal GasLink pipeline.

The answer to these deeper legal questions will carry implications for other First Nations moving to assert their land rights within the borders claimed by the Canadian federal government. Elsewhere, six Wolastoqey communities are asking for compensation from logging companies in New Brunswick, reports the Star.