Sam Adkins is a lawyer with a focus on Indigenous law, based in Vancouver.
Private landowners in Richmond, B.C., might be surprised to learn that there is currently an aboriginal title claim winding its way through the courts that affects hundreds of private properties. More surprisingly, the court does not want them to know about it. Should they be concerned? Probably not, but the reasons why are complicated.
So goes Canadian Indigenous law, a complex and deeply political area of law that is quietly transforming Canada. It bubbles to the surface when pipelines are concerned, and a lot of ink is spilled about Indigenous consent, consultation and veto. The reality is that almost all of B.C. sits on unceded Indigenous land. Yet no one seriously questions the right of non-Indigenous British Columbians to live here. We implicitly understand the need to balance and reconcile important but conflicting rights to land.
Pipelines are no different. The fundamental question is not whether all Indigenous groups agree to a particular pipeline, but how to balance meaningful protections for Indigenous rights with the broader public interest in developing infrastructure projects that affect many communities – both Indigenous and non-Indigenous. It is a serious question without a simple answer.
Canada constitutionally protected aboriginal and treaty rights in 1982, putting us in a very small group of countries that provide the highest possible level of legal protection to Indigenous rights. The challenge is figuring out what those rights are. We have typically left it to the courts to sort this out, but proving rights is an enormously expensive and time-consuming process.
Take the historic Delgamuukw decision of the Supreme Court of Canada in 1997. Despite being successful in litigation that spanned more than a decade, the Wet’suwet’en and Gitxsan nations did not actually prove they held title to their lands. Rather, they were told to go back and start again. They never did. The Tsilhqot’in Nation ultimately picked up the ball, but it took another 17 years for them to become the first Indigenous group in Canada to prove aboriginal title.
In 2004, the Supreme Court filled this gap by imposing consultation obligations on the federal and provincial governments. The “duty to consult” applies to all government decisions that might affect aboriginal and treaty rights and is meant to minimize disagreement and limit potential impacts on Indigenous rights. Consultation is not consent, and Indigenous peoples do not have a veto over the outcome. Balance is a key principle under Canadian law.
The B.C. government’s recent move to put in place a legislative framework for implementing the UN Declaration on the Rights of Indigenous People (UNDRIP) does not change this. While much focus has been on the requirements of “free, prior and informed consent” of Indigenous peoples, article 46 of UNDRIP specifically provides for limitations on Indigenous rights for the purpose of “securing due recognition and respect for the rights and freedoms of others.” In short, no rights are absolute in a democratic society.
The LNG Canada project and associated Coastal GasLink pipeline are good examples of this tension. The proponents of the LNG facility in Kitimat, B.C., and 670-kilometre natural gas pipeline recently began construction after years of regulatory approval processes and substantial consultation with almost 30 Indigenous groups across the province. These are massive undertakings and represent the single largest private-sector investment in Canadian history. They also enjoy unprecedented support from the provincial and federal governments, municipalities and First Nations.
That does not mean there is no opposition. A small group of Wet’suwet’en people has been blockading the proposed route of the Coastal GasLink pipeline for many years. The Wet’suwet’en is the same First Nation that brought the litigation in Delgamuukw. They are governed through a hereditary system made up of 13 different house groups, each with its own hereditary chief. But true to the complexity of Indigenous law, Wet’suwet’en people are also members of several different bands under the Indian Act, each with its own elected government.
Coastal GasLink ultimately signed agreements with each of the elected Wet’suwet’en governments to support construction of the pipeline. A group of hereditary chiefs remains opposed, but it is clear that not all Wet’suwet’en people agree with their position. More importantly, the hereditary chiefs have never taken any steps to resolve their concerns legally, choosing instead to support the blockade.
The B.C. Supreme Court recently granted an injunction in favour of Coastal GasLink, allowing it to proceed with construction of the pipeline. In reaching its decision, the court carefully weighed the position of the Wet’suwet’en hereditary chiefs against a number of competing interests, including those of the elected Wet’suwet’en governments, other Indigenous groups, Coastal GasLink and the broader public interest in the pipeline proceeding.
Getting the balance right is hard, and we often get it wrong. But it undermines the seriousness of the debate to boil down the approval of complex, large-scale resource projects to the simple question of Indigenous consent. In a democratic and diverse country such as Canada, we will always have conflicts and will always need to balance important societal interests.
When we disagree, we have rules and processes that allow us to move forward in a way that respects the rule of law. There are projects that can and should be built in this country – and that includes the Coastal GasLink project.
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