What the Wet’suwet’en case says about how Canadian courts address Indigenous law

About 30 years before the Wet’suwet’en First Nation faced the possibility of a natural gas pipeline through its territory, members fought a different battle in court.

Lawyer Peter Grant, who represented the Wet’suwet’en and neighbouring Gitxsan First Nation, reportedly called an elder as a witness and asked her to sing a death song.

The 1991 Delgamuukw case considered the existence of Aboriginal title and Grant told the B.C. Supreme Court that the song was part of an oral history that explained the First Nation’s relationship to the territory.

In an exchange widely quoted in legal journals, he was interrupted by Justice Allan McEachern, who said it wouldn’t do any good to sing the song because he had a “tin ear.”

The tin ear analogy was front of mind for legal expert Doug White as he read a decision issued last week by the B.C. Supreme Court granting an injunction to Coastal GasLink against pipeline opponents in the territory.

The company plans to build a 670-kilometre pipeline from northeastern British Columbia to LNG Canada’s $40-billion export terminal on the coast in Kitimat.

It posted an injunction order Tuesday giving opponents 72 hours to clear the path to its work site, although the company said its focus remains on reaching a peaceful resolution. The notice comes a year after the RCMP enforced a similar injunction and arrested 14 people at the site.

At the core of the dispute is the fact that although the company has signed agreements with all 20 elected First Nations along the pipeline’s path, the Wet’suwet’en hereditary clan chiefs say the project has no authority without their consent.

“We’ve got to be able to start to grapple with the reality of Indigenous legal tradition in this country,” said White, who is the director of Vancouver Island University’s Centre for Pre-Confederation Treaties and Reconciliation.

It’s long been a challenge for the Canadian legal system to hear and incorporate Indigenous law and legal traditions in its decisions, and the latest decision reflects the status quo, he said.

But recent developments, like the B.C. government’s adoption of the United Nations Declaration on the Rights of Indigenous People, suggest the time is right to figure it out.

“We have to urgently start to find solutions that work, because the longer we delay finding those solutions or building those solutions together, creating common understanding and pathways, the more we’re going to end up in this kind of conflict,” White said.

The Dec. 31 decision says the courts need to be flexible in how it approaches proof of Indigenous law, while suggesting the questions raised in the injunction hearing would be better addressed through a constitutional challenge.

“The reconciliation of the common law with Indigenous legal perspectives is still in its infancy,” Justice Marguerite Church wrote.

At the same time, she says that while Wet’suwet’en customary laws “clearly” exist on their own independent footing, they are not recognized as being an effectual part of Canadian law because the Wet’suwet’en Aboriginal title claims have not been resolved through litigation or negotiation.

“The defendants are seeking to exclude the application of British Columbia law within Wet’suwet’en territory, which is something that Canadian law will not entertain,” Church writes.

From White’s perspective, Canada’s entire legal model is based on a blend of legal traditions, so it shouldn’t be a stretch to incorporate other models too.

In the family law realm, the Canadian legal system has taken Indigenous customary law into account. As early as 1889, Canada recognized Indigenous models of marriage and there were several adoption cases in the 1940s recognizing Indigenous family models, White said.

There’s also a comprehensive body of law dealing with Indigenous issues beyond families, especially since the 1960s, but the courts have struggled to deal with one particular area, he said.

“There’s one major omission, there’s one big huge smoking hole in the middle of all of this. And that is the issue of Aboriginal self-governance or self-determination,” White said.

The Tsilhqot’in decision in the Supreme Court of Canada, which recognized the Tsilhqot’in’s claim to Aboriginal title to their land, was a significant move in that direction.

But even on that issue, White points out that an earlier judge suggested the court isn’t the best venue to pursue reconciliation.

There have been significant strides in recent years towards the recognition of Indigenous law in Canadian legal culture.

Indigenous law classes and programs are increasingly common in universities across the country.

The University of Victoria announced a new program in 2018 that it declared the first of its kind for combining the “intensive study of both Indigenous and non-Indigenous law,” promising it would enable students to work fluently across the two realms. Canada’s largest law school, York University’s Osgoode Hall, also added an Indigenous and Aboriginal law requirement to its juris doctor program that year.

But until the courts learn to better listen to what Indigenous Peoples are saying, or what their legal traditions and authorities are, many like those opposed to the Coastal GasLink pipeline won’t feel heard, White side.

“For whatever reason, the Canadian imagination has not had room for dealing with that reality, it’s not been part of the official narrative.”

This report by The Canadian Press was first published Jan. 9, 2020.

Amy Smart, The Canadian Press