Rule of law and Indigenous rights not mutually exclusive
Demonstrations have spread across the country in support of Wet’suwet’en land protectors in British Columbia. Land protectors have been the subject of several RCMP raids over the last year. The RCMP state that the raids were carried out to enforce a British Columbia Supreme Court injunction ordering the removal of camps obstructing access for construction of the Coastal Gaslink pipeline.[mfn referencenumber=1]Coastal Gaslink Pipeline Ltd v Huson et al (7 January 2020), (Prince George), BC Sup Ct, 1854871 (interlocutory order), Coastal Gaslink[/mfn] Dozens of Wet’suwet’en people and supporters have been arrested in connection with these raids and demonstrations.
The dispute is centered on Wet’suwet’en lands subject to a pending Aboriginal title claim. While the Wet’suwet’en Band Council consented to the construction of the Coastal Gaslink pipeline, the Wet’suwet’en Hereditary Chiefs were not meaningfully consulted and did not consent. The Chiefs and their supporters oppose the construction of the pipeline.
Delgamuukw centres pre-existing Indigenous legal systems
In support of the Hereditary Chiefs’ claim, Delgamuukw has been repeatedly invoked, given its recognition of Aboriginal title as originating in “pre-existing systems of aboriginal law”. The duty to consult was not at issue in Delgamuukw, and the Supreme Court of Canada accordingly did not decide whether the Hereditary Chiefs or Indian Act band council were the appropriate party for consultation by the Crown. However, it is not tenable to suggest that Delgamuukw is of “no assistance on the matter”.[mfn referencenumber=2]William Mazurek, “Delgamuukw Does Not Support Wet’suwet’en Protestors’ Claims”, Ultra Vires (29 January 2020)[/mfn]
This is particularly true as Delgamuukw emphasizes pre-contact Indigenous society and legal systems. The Court rooted Aboriginal title partially in “the relationship between common law and pre-existing systems of aboriginal law”. The Court also underscored the importance of protecting “historic patterns of occupation” and identified the purpose of s 35 of the Constitution Act, 1982 as “the reconciliation of the pre-existence of aboriginal societies with the Crown.”
Similarly, the duty to consult is sourced in this goal of reconciliation. In Haida, the Supreme Court cited “the aim of reconciliation” established in Delgamuukw as being closely related to the duty to consult.[mfn referencenumber=3]Haida Nation v British Columbia, 2004 SCC 73 at para 14 [Haida].[/mfn] The Supreme Court has consistently stressed that both Aboriginal title and the duty to consult must be considered with a view to reconciliation between pre-contact Indigenous society/legal systems and the assertion of Crown sovereignty.
Recognizing traditional forms of Indigenous governance is necessary if the stated goal of reconciliation is to have any meaning. While the precise role of hereditary leadership varies among Indigenous communities, the recognition and authority of hereditary chiefs extends back “to time immemorial” and “is intrinsically tied to a territory and the land”.[mfn referencenumber=4]“Elected vs. hereditary chiefs: What’s the difference in Indigenous communities?”, CTV News (11 January 2019)[/mfn] It is clear that hereditary leadership forms an important aspect of pre-contact Indigenous society and, in turn, has an important role to play in achieving reconciliation. Consultation with traditional and pre-contact systems of Indigenous governance such as the Wet’suwet’en Hereditary Chiefs is, therefore, consistent with the Supreme Court’s emphasis in Delgamuukw and Haida on historic Indigenous occupation, society, and legal systems.
The claim of Hereditary Chiefs and their supporters is also entirely consistent with the communal nature of Aboriginal title. They do not claim that the Chiefs themselves are the sole rightful holders with respect to Wet’suwet’en Aboriginal title. They do not and need not dispute the collective nature of Aboriginal title recognized by the Court in Delgamuukw.
Rather, they claim the Chiefs to be the rightful representatives of the Wet’suwet’en people with respect to the land rights at issue and thus, the proper party for consultation.
The problem with Indian Act bands
The importance of consulting hereditary leadership is all the more apparent if we historicize the Indian Act and consider the nature of Indian Act bands themselves.
The introduction of the term “band” to Canadian law in the Indian Act was an integral component of an oppressive and assimilatory legislative framework.[mfn referencenumber=5]Report of the Royal Commission on Aboriginal Peoples,vol 1 (Ottawa: Canada Communication Group, 1996) at 255 [RRCAP][/mfn] Defining “band” was a means by which to administer a variety of colonial policies, including the forced adoption by Indigenous communities of “municipal-style ‘responsible’ governments in place of . . . traditional governance systems”.[mfn referencenumber=6]Ibid.[/mfn]
The legal preconditions which give rise to recognition as a band under the Indian Act depend on a particular set of relationships between an Indigenous collective and the state. The band is created or recognized by virtue of its having a reserve entitlement, trust funds, or otherwise where the State has expressly conferred band status. Given these routes to recognition, the social and cultural reality of Indigenous groups pre-dating the Indian Act is not reflected in the granting of band status as such status is not based on any traditional Indigenous definition or identification. Instead, these colonial instruments displaced existing governance systems and disrupted the polities of Indigenous groups across Turtle Island.
If the goal of consultation, as held in Haida, is reconciling pre-existing Aboriginal communities with assertions of Crown sovereignty, the Indian Act band seems to be an improper unit for achieving that goal.
In Kwicksutaineuk/Ah-Kwa-Mish First Nation, the British Columbia Court of Appeal recognized that Indigenous groups may self-identify along traditional lines separate and distinct from those set out by band status under the Indian Act.[mfn referencenumber=7]Kwicksutaineuk/Ah-Kwa-Mish First Nation,2012 BCCA 193 at para 77, leave refused [2012] SCCA No 336 (SCC) [Kwicksutaineuk].[/mfn] It is clear that Indigenous groups which predated the Indian Act are not interchangeable with the bands that resulted from the imposition of the Act. For the purposes of reconciliation, only the former is relevant, given its existence prior to contact. Indian Act bands and band councils, on the other hand, are a product of the very process of colonization that reconciliation is intended to remedy.
Consultation in this context is intended to protect unproven Aboriginal interests in land from adverse effects. As such, it is worth noting that Indian Act bands are not rights-holders for the purposes of s 35 assertions of Aboriginal rights and title. Rather, it is the pre-existing Indigenous collective as traditionally or historically defined.
While it is true that Aboriginal rights and Aboriginal title are often asserted by Indian Act band councils on behalf of the community,[mfn referencenumber=8]See e.g. Orr v Alook, 2013 ABQB 86at paras 37–38; Kwicksutaineuk, supra note 6 at para 77; William v British Columbia, 2012 BCCA 285 at paras 155–156, rev’d on other grounds 2014 SCC 44 [William].[/mfn] the British Columbia Court of Appeal has held that the creation of Indian Act bands does not affect the pre-existing Aboriginal rights of an Indigenous community.[mfn referencenumber=9]William, supra note 7 at paras 155–156.[/mfn] In William v British Columbia, the British Columbia Court of Appeal held that the organization of Tsilhqot’in Nation into five distinct bands under the legislative scheme of the Indian Act was a “result of reserve allocation”[mfn referencenumber=10]Ibid at 155.[/mfn] and “did not affect the identity of the Nation as the holder of rights”.[mfn referencenumber=11]Ibid.[/mfn]
It is clear that the band cannot be assumed to be the proper entity to assert an Aboriginal rights claim.[mfn referencenumber=12]Kwicksutaineuk, supra note 6 at para 77.[/mfn] While bands and band councils frequently assert Aboriginal rights claims, this may be attributed to over 100 years of the Indian Act disrupting Indigenous polities and imposing federal control over the membership and definition of Indigenous groups. This history provides a better explanation than a suggestion that the use of bands, as a caretaker of rights, is a reflection of the continuance between pre-existing communities and Indian Act bands. The mere fact that bands and band councils frequently assert Aboriginal rights claims does not mean that they are the only group that may rightfully assert these claims.
Pre-contact Indigenous society and legal systems are particularly relevant to claims of Aboriginal title and the duty to consult. Indian Act bands are not interchangeable with pre-Indian Act Indigenous communities and are not proper rights-holders for the purposes of s 35. Aboriginal rights and title inhere in the relevant Aboriginal collective entirely distinct from band status under the Indian Act.
The duty to consult exists precisely to protect the collective rights of Aboriginal peoples and is accordingly owed to the group that holds the rights at issue.[mfn referencenumber=13]Behn v Moulton Contracting Ltd,2013 SCC 26 at para 30 [Behn].[/mfn]
In determining who is the proper representative for the collective rights-holder, the goal of reconciliation must inform the analysis. Exclusive meaningful consultation with the Indian Act band council is incompatible with the stated purposes of s 35, particularly the concept of Aboriginal title and the duty to consult as being necessarily associated with pre-contact Indigenous society and legal systems. Meaningful consultation with the Hereditary Chiefs, whose role in governance extends back prior to contact, is far more consistent with the Supreme Court’s stated goal in Delgamuukw and Haida of reconciling pre-existing Indigenous legal systems with Crown sovereignty. While the band council may have some role in consultation, the consent of band councils should not be seen as superseding or detracting from this necessary, meaningful consultation with hereditary leadership.
Hereditary Chiefs had delegated authority to assert title in Delgamuukw
Further, in Behn v Moulton Contracting Ltd., the Supreme Court held that the ability of an Indigenous collective to assert an Aboriginal right or title can be delegated to an authorized individual or organization. In some Indigenous communities, this kind of delegated authority may be conferred on the band council for the purposes of asserting s 35 rights. However, in this case, the fact that the Hereditary Chiefs represented the Wet’suwet’en people for the purposes of asserting Aboriginal title before the Supreme Court in Delgamuukw could support the existence of such a delegation to the Hereditary Chiefs.
The ability of the Chiefs to assert a claim of Aboriginal title by virtue of delegated authority could extend to an entitlement to be consulted in relation to the Coastal Gaslink pipeline. The duty to consult is inextricably linked with pending claims of Aboriginal title. If the Chiefs have delegated authority to assert title over the lands in issue, then it follows logically that they would also be the rightful recipient of consultation where those same lands are potentially adversely affected, giving rise to a duty to consult.
In Delgamuukw, the Supreme Court identified the goal of reconciling pre-existing Indigenous legal systems with the imposition of Crown sovereignty. Hereditary leadership was an important element of pre-contact Indigenous society, and particularly, constitutes a part of the legal tradition of the Wet’suwet’en people. Indian Act band councils, on the other hand, are given authority under legislation, but result from the imposition of the Indian Act on the internal affairs and governance structures of Indigenous groups.
While there may be ongoing questions as to how conflicts between hereditary leadership and Indian Act band councils can be resolved, to say the Hereditary Chiefs are exhibiting “wishful thinking” by invoking Delgamuukw is to ignore the stated objectives of the Supreme Court both in Delgamuukw and also in subsequent s 35 jurisprudence—particularly the reconciliation of pre-existing Indigenous legal systems with assertions of Crown sovereignty.
Editor’s Note: Rory Smith is the Ultra Vires Diversions Editor.
