On Dec. 11, 1997, the Supreme Court of Canada issued a landmark ruling confirming that Indigenous peoples have valid claims to ancestral lands they had never ceded by treaty, introducing the requirement for consent to resource development within their traditional territories.
Twenty years later, the direction set down by the country's highest court has altered the political climate. The governments of Canada and B.C. have now embraced an international declaration of Indigenous rights that calls for "free, prior and informed consent" from First Nations for such developments. But from the Kinder Morgan pipeline to the Site C dam, both levels of government remain vague about how their authority co-exists with Indigenous rights and title.
The Delgamuukw case was fought by the hereditary chiefs of the Gitxsan and Wet'suwet'en tribes in northwestern British Columbia at a time when the provincial government insisted that First Nations "cede, release and surrender" their Indigenous rights in order to achieve treaties.
But the Supreme Court found that Indigenous title exists, and that it includes the right to choose the uses of land. In its ruling, it acknowledged that the Crown may need to infringe on Indigenous rights, but set down limits: Even in rare cases of minor infringement, "when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation."
The finding was met with apprehension by the provincial government of the day. Months after the judgment, then-premier Glen Clark said the requirement for consent would not get in the way of developing Crown land and resources. At the time, he was wrestling with concerns that his government's ability to process applications for resource development on Crown land was bogging down because of uncertainty over the land question.
"The policy is, basically, that we consult with aboriginal people as required by the Supreme Court decision, and then we carry on and do business," Mr. Clark said in an interview at the time. "Consultation doesn't mean that we give veto power to aboriginal people, consultation means we consult with them."
Grand Chief Ed John of the First Nations Summit, took issue with Mr. Clark's interpretation of the law then. Today, he is still pressing political leaders to understand that the requirement of consent means it is is not business as usual.
"The court determined this was a legal interest in land, this aboriginal title. It determined the Gitxsan and Wet'suwet'en have a right to make decisions about this legal interest," Chief John said in an interview. "That's what consent is about, the ability as Gitxsan and Wet'suwet'en to make decisions respecting their traditional territories."
The Supreme Court's finding in this case remains one of the most significant rulings on land rights in Canada, he said. It has since be built upon – notably in the 2014 Tsilhqot'in decision, in which the court ruled that Indigenous Canadians still own their ancestral lands unless they signed away their ownership in treaties.
Now, both the federal and B.C. governments have formally embraced the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). But in practical terms, uncertainty remains because these two worlds – Crown jurisdiction and Indigenous title – have yet to be reconciled.
The federal government wants to see the Kinder Morgan pipeline expansion built despite the deep opposition of coastal First Nations. And, as early as Monday, the B.C. government is set to decide if it will continue with construction of the Site C dam, which would be in opposition to the West Moberly and the Prophet River First Nations, who are threatening to sue for infringement of their treaty rights if the dam continues.
Chief John says there is a way forward, and it is spelled out in UNDRIP.
"Indigenous peoples have the right to redress," the declaration states, "by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent."
Both Prime Minister Justin Trudeau and B.C. Premier John Horgan have pledged to implement UNDRIP. If they proceed to press ahead with an oil pipeline or a hydroelectric dam without consent, it seems they are obligated to open this door to redress.