Northern BC pipeline conflict raises questions about the duty to consult
Tensions erupted in northern British Columbia in mid-January as the RCMP set up a blockade on a Forest Service Road leading to three encampments occupied by Indigenous protestors.
The protestors have occupied the sites since last year in an effort to halt construction of the Coastal Gaslink pipeline. When built, the project will transport natural gas from Dawson Creek to an LNG terminal near Kitmat.
On December 31, the British Columbia Supreme Court issued an interlocutory injunction and enforcement order against protestors on the Morrice West Forest Service Road. Coastal Gaslink obtained the injunction as part of an ongoing private nuisance and conspiracy claim it is bringing against the protestors.
Despite the injunction, protestors claim lawful authority to prevent the project from proceeding because of a pending claim for Aboriginal title over the lands in question. Although Coastal Gaslink has consulted and signed agreements will all 20 elected First Nations Band Councils along the pipeline’s route, 12 out of 13 Wet’suwet’en Hereditary Chiefs oppose the project.
The Wet’suwet’en are governed both by the Hereditary Chiefs and the First Nations Band Councils. The chiefs govern according to Wet’suwet’en law while the Band Councils are a statutory creation of the Indian Act.
The opposed Hereditary Chiefs say the Crown cannot satisfy its duty to consult by obtaining consent from the elected Band Councils alone.
Supporters of the Chiefs say that the Supreme Court Case of Delgamuukw v British Columbia case recognized them as the rightful holders of Aboriginal-titled lands.
“The Hereditary Chiefs, not the Band Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’wa case before the Supreme Court”, a group of 33 law professors* recently wrote in an open letter to British Columbia Premier John Horgan.
“The fact that Band Councils have signed benefit agreements with Coastal GasLink cannot justify the erasure of Indigenous law or negate the Crown’s obligation to meet with the Hereditary Chiefs.”
“How can the injunction override a Supreme Court decision that recognized hereditary leaders as the proper title and rights holders?” Ryerson Professor Shiri Pasternak similarly asked in a Globe and Mail op-ed last week.
Despite academic urgings, Delgamuukw does not support the proposition that only the hereditary chiefs can discharge the duty to consult.
Delgamuukw explicitly states that Aboriginal title is held communally and cannot be held by individual Aboriginal persons. Therefore, Professor Pasternak’s contention, that the Court imbued the Hereditary Chiefs with the right to hold title and with it the right to be consulted, cannot be correct.
Delgamuukw says that Aboriginal title is jointly held among all members of a relevant group rather than by the Hereditary Chiefs. On the Court’s reasoning, the Crown seems to owe the duty to consult to all the Wet’suwet’en people directly rather than to any of their governance structures.
Of course, Delgamuukw does not foreclose the possibility that individual rights holders could delegate their right to be consulted to some kind of governance structure, be it voluntarily or by force of law. Practically, the Supreme Court could not have contemplated that the Crown would need to consult with every individual member of a group prior to proceeding with a project.
However, Delgamuukw is silent on what this kind of governance structure would suffice. Title holders could well delegate their right to the Hereditary Chiefs who draw their legitimacy from the force of Wet’suwet’en Aboriginal law.
However, because the Court established that title is held collectively by Aboriginal people themselves, and not by their sovereign nations, rights holders appear equally able to delegate their authority in another manner, including to the elected Band Councils if they so choose.
The legal fact that the Hereditary Chiefs were plaintiffs in Delgamuukw does not seem to be relevant to their right to be consulted about title claims.
Perhaps the Hereditary Chiefs do possess the legal right to make consultation decisions on behalf of the Wet’suwet’en collective. But then again, perhaps not.
This is not to say that the Delgamuukw establishes the elected Band Councils as the appropriate vehicles for consultation. It is merely to say that the case is of no assistance on the matter.
This may be an appropriate matter for the Supreme Court to decide, particularly in view of British Columbia’s recent adoption of the United Nations Declaration on the Rights of Indigenous Peoples. But until it does, supporters’ claims of having the Supreme Court on the Hereditary Chiefs’ side will remain wishful thinking.
*Writer’s note: No Faculty from the University of Toronto were signatories on the letter.
