The Supreme Court Of British Columbia Failed To Consider The Fundamental Principle Of Reconciliation In The Coastal Gaslink Pipeline Ltd. V. Huson

THE SUPREME COURT OF BRITISH COLUMBIA FAILED TO CONSIDER THE FUNDAMENTAL PRINCIPLE OF RECONCILIATION IN THE COASTAL GASLINK PIPELINE LTD. V. HUSON

OTTAWA, ON – The Indigenous Bar Association in Canada (“IBA”) is of the view that the Supreme Court of British Columbia failed to consider the fundamental principle of reconciliation in the Coastal GasLink Pipeline Ltd. v. Huson decision. In this case the Court considered Coastal GasLink Pipeline Ltd.’s (“Coastal GasLink”) application for an interlocutory injunction to preclude Indigenous land protectors, namely, representatives of the Dark House in Wet’suwet’en, from erecting blockades in their traditional territory. The Indigenous land protectors blocked access to the territory to prevent the construction of a natural gas pipeline. As stated at trial by the Indigenous land protectors, they were preventing access pursuant to their inherent Wet’suwet’en laws. The Honourable Madame Justice Church ultimately decided in favour of Coastal GasLink.

In arriving at her decision, Justice Church categorically undermined the foundational principle of reconciliation enshrined in Section 35 of the Constitution Act, 1982. In particular, the Court failed to give meaningful consideration to Wet’suwet’en law and customs.

At paragraph 138, Justice Church states,

It is difficult to reach any conclusions about the indigenous legal perspective, based on the evidence before me and I tend to agree with the submission of the plaintiff that the defendants are posing significant constitutional questions and asking this court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial.

This can be contrasted with the Supreme Court of Canada’s decision in Delgamuukw, where former Chief Justice Lamer stated,

… although the doctrine of aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples… Both the principles laid down in Van der Peet – first, that trial courts must approach the rules of evidence in light of the evidentiary difficulties inherent in adjudicating aboriginal claims, and second, that trial courts must interpret that evidence in the same spirit – must be understood against this background.

The Court’s failure to acknowledge the evidentiary difficulties in this case ignores the unequivocal direction of the Court to devise ways of addressing evidentiary problems in litigating issues surrounding rights and title.

The Wet’suwet’en and Gitxsan have been fighting for decades for a declaration recognizing their rights and title to the land at issue, yet no final declaration has been made. The Crown has never entered into treaty with the Wet’suwet’en people.

Justice Church begins the next paragraph by stating, “[t]he reconciliation of the common law with indigenous legal perspectives is still in its infancy…” This is a complete mischaracterization of the process of reconciliation.  Reconciliation is a process that has been ongoing since the assertion of Crown sovereignty, and is constitutionally entrenched in Section 35 of the Constitution Act, 1982. To suggest that this historic and ongoing process is in its infancy demonstrates a deep misunderstanding of Indigenous-Crown relations.

Finally, at paragraph 128, Justice Church states “The aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. 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.”

The acknowledgement of Wet’suwet’en law and its implementation in Canada’s larger legal framework is an essential step to the achievement of reconciliation. It is extremely important that Indigenous perspectives, laws, customs, and traditions be respected and given meaningful expression.

As Professor John Borrows has written, in Canada’s Indigenous Constitution:

The culture of law is weakened in the country as a whole if Indigenous peoples’ legal traditions are excluded from its matrix. Not only do we lose the wisdom they could provide about how to organize relationships and reduce disputes, we also fail to attend to the underlying justice of Canada’s creation and development. The recognition of Indigenous legal traditions could connect Aboriginal and other Canadians to land in ways not possible under the current administration of common or civil law. When common or civil law is applied solely to remove Indigenous people from their lands and environments, the highest principles of Canada’s legal system are not served. …[T]here was no conquest of Indigenous peoples that extinguished their jurisdictional rights over their own affairs. There was no discovery by the Crown that would justify the extinguishing Indigenous legal jurisdiction. The Crown’s claims of effective occupation and adverse possession over lands where Indigenous peoples still reside are not very persuasive doctrines when they are used to undercut pre-existing and contemporary Indigenous laws.

Just over a month ago, the BC government passed Bill 41, the Declaration on the Rights of Indigenous Peoples Act, which brings BC’s laws into conformity with the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”). Coming on the heels of BC’s adoption of Bill 41 it is difficult to comprehend how the British Columbia Supreme Court arrived at its decision in Coastal GasLink Pipeline Ltd. v. Huson. For instance, UNDRIP articles 26(2) and 27:

Article 26(2)

Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

As stated by The Honourable Stephen O’Neill, “Denying Indigenous law any effectual meaning as “law,” and potentially criminalizing the actions taken under Wet’suwet’en customary law and authority, will not lead to reconciliation. Indeed, it is the antithesis to reconciliation, however that word may be interpreted in law or in practice.”

The IBA calls on Coastal GasLink to immediately cease any actions which will lead to the enforcement of the injunction. The IBA strongly encourages the BC judiciary to receive training relating to Indigenous peoples and how to properly consider Indigenous law. Lastly, the IBA calls on the RCMP to refuse to enforce the injunction.

The IBA is a national association comprised of Indigenous lawyers (practicing and non-practicing), legal academics and scholars, articling clerks and law students, including graduate and post-graduate law students. We are mandated to promote the advancement of legal and social justice for Indigenous peoples in Canada and the reform of laws and policies affecting Indigenous peoples.  For more information please visit www.indigenousbar.ca.