The discussion in class about the Wet’suwet’en First Nation (WFN) and its opposition to the Coastal GasLink Pipeline Project (GCPP) piqued my interest and I decided to do some research to better understand the issues from an aboriginal land title perspective. How can two entities (The Crown and WFN) claim to ‘own’ the same land? I use the term ‘Crown’ to mean both/either provincial and/or federal governments. This is not a discussion about aboriginal lands claims in general.
WFN, with a population of approximately 5,000, claims title to approximately 22,000 square kilometers of unceded land in Northern BC.[1] Unceded means that its rights to the land were not transferred, or extinguished, to the Crown. Within the 22,000 sq. km. that the WFN claims, there are a number of smaller reserves.
WFN is made up of 5 clans (Big Frog, Small Frog, Beaver, Fireweed, and Wolf/Bear.) The clans in turn are made up of 2 or 3 houses for a total of 13 houses, each with a hereditary chief.[2] The 13 hereditary chiefs are different from the elected band council leaders. The elected leaders of the six WFN bands control the reserves and the hereditary chiefs have authority over the larger WFN land area, or at least that is the position of the hereditary chiefs. Whereas the control of the reserves derives from the Indian Act after the arrival of the Europeans, the claim of the hereditary chiefs is timeless.
It is interesting that the BC government implemented the United Nations Declaration of Rights of Indigenous Peoples (UNDRIP) in 2019.[3] Similarly the federal government has committed to a reconciliation process with FNs, including resolving land claim issues.
Two cases before the Supreme Court of Canada (SCC) had a direct impact on WFN’s claim. The first and most significant was Delgamuukw v British Columbia in 1997. The SCC gave a boost to the aboriginal title claims of the WFN and the Gitxsan FN by affirming aboriginal land rights under Section 35 of the Canadian constitution and clarifying the conditions that must be met to prove an aboriginal land claim (occupation, continuity and exclusivity). The second case was Tsilhgot’in Nation v British Columbia in 2014, which reaffirmed the findings in the Delgamuukw case. It is important to note that neither the Delgamuukw nor the Tsilhgot’in cases defined the boundaries of the land areas in question. Delgamuukw also recommended that land claims be pursued via negotiation and a treaty process instead of through the courts, which are slow and expensive.[4]
Do these cases mean that FNs have a veto over development projects on their land? No, the wishes of a FN may be overridden by the Crown if it adequately performs its duty to consult, reasonably accommodates the concerns of the FN, has a compelling and substantial objective and does not deprive the FN of future benefits of the land. What is the nature of the aboriginal title? It is not a fee simple title and cannot be transferred to an individual or corporation. The title is for use, occupation and sharing in the economic benefits associated from the land. There is an “inherent limit” to the title reflecting that the land is held collectively by the FN and the traditional connection to the land cannot be severed.[5]
The exclusivity condition required to establish a claim may be difficult for WFN because several other BC FNs, specifically Carrier Sekani, Gitxsan, Tsimshian and Lake Babine, claim portions of the 22,000 sq. kms claimed by WFN.[6]
WFN has been fighting for the title to its traditional land since 1984 when it initiated the Delgamuukw suit. The event that brought this issue to the news headlines recently was the CGPP, which is the construction of a 48-inch, 670-kilometer pipeline from Dawson Creek to an Liquefied Natural Gas (LNG) export facility in Kitimat, BC. The project manager is TransCanada Energy (TCE) with partners LNG Canada, Korea Gas Corp., Mitsubishi, PetroChina, and Petronas. The estimated cost of the project is $6.6 billion.[7] The preferred route of the pipeline runs through 190 kilometers of WFN territory.[8]
GCPP claims that it got the approval via benefit agreements of the 20 FNs, including WFN, along the proposed route. But the approval that was obtained from WFN was from the band council leaders and not from the hereditary chiefs. Access to the pipeline on WFN land was denied by the hereditary chiefs, resulting in construction being stopped. Without going into a lot of detail, the RCMP were called in and arrests were made and serious and very disruptive protests were initiated in numerous locations across Canada. An agreement was reached between the hereditary chiefs and the Crown, but details have not been released until it has been reviewed and approved by the whole WFN. The agreement purports to address the broader land rights issue and not only the GCPP.[9]
Given that aboriginal land claims are not going to go away, that the SCC has ruled in favour of aboriginal land titles, that BC has adopted UNDRIP, that the federal government is committed to reconciliation, that FNs are willing to disrupt railroads and roads to support their claims, the Crown should take dramatic action such as establishing a tribunal to deal with aboriginal land issues in a comprehensive and systematic way. Having said that, the issues involved are complex and emotions run high on both sides. There will be no easy answers.
[1] https://www.theguardian.com/world/2020/feb/14/wetsuweten-coastal-gaslink-pipeline-allies, accessed March 7, 2020
[2] http://unistoten.camp/about/governance-structure/, accessed March 7, 2020
[3] https://www.greenpeace.org/usa/indigenous-law-and-the-raids-on-wetsuweten/, accessed March 7, 2020
[4] https://en.wikipedia.org/wiki/Delgamuukw_v_British_Columbia, accessed March 6, 2020
[5] https://www.thestar.com/politics/federal/2020/03/03/by-offering-to-recognize-wetsuweten-land-rights-ottawa-is-changing-the-way-canada-is-governed-heres-how.html, accessed March 7, 2020
[6] https://www.theglobeandmail.com/canada/british-columbia/article-overlapping-land-claims-in-wetsuweten-territory-complicate-talks/, accessed March 6, 2010
[7] https://en.wikipedia.org/wiki/Coastal_GasLink_Pipeline, accessed March 7, 2020
[8] https://globalnews.ca/news/6567929/wetsuweten-protests-delgamuukw-case/, accessed March 7, 2020
[9] https://www.cbc.ca/radio/thecurrent/the-current-for-march-2-2020-1.5482082/tentative-deal-is-a-recognition-of-wet-suwet-en-laws-and-rights-over-land-minister-carolyn-bennett-1.5482138, accessed March 7, 2020
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