MUST READ: “For the Wet’suwet’en and Gitxsan peoples, justice has been denied. What else is new?”

Some of the many Wet’suwet’en suppporters on January 10, 2020:

Calgary, Trans Canada Tower



For the Wet’suwet’en and Gitxsan peoples, justice has been denied. What else is new? by Stephen O’Neill, Jan 9, 2020, The Globe and Mail

The Honourable Stephen O’Neill was a judge on the Ontario Superior Court of Justice from 1999 to 2015 and is currently an associate lawyer at Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors.

“Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.” This was stated by Beverley McLachlin, then the chief justice of the Supreme Court of Canada, in the seminal 2004 legal decision Haida Nation v. British Columbia (Minister of Forests). She continued: “Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights imbedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.”

She concluded in Haida: “[W]hile this process [of reconciling Indigenous claims with Crown sovereignty] continues, the honour of the Crown may require it to consult, and where indicated, accommodate Aboriginal interests.”

These words – and the way in which they have rung hollow – echo even more in the wake of the B.C. Supreme Court’s decision on New Year’s Eve to grant an interlocutory injunction order in favour of Coastal GasLink Pipeline Ltd., which has received approval to build a 670-kilometre natural-gas pipeline from west of Dawson Creek, B.C., to a liquefied-natural-gas export facility near Kitimat on Wet’suwet’en Nation lands.

This latest injunction represents a blow to the efforts to oppose the project in the area, as this order could potentially criminalize those land protectors who, with the support of the Wet’suwet’en Nation, have been working for years to uphold customary Wet’suwet’en law; for about a year, Wet’suwet’en members have blockaded a remote stretch of forest service road and a bridge using checkpoints on their traditional territory about 300 kilometres west of Prince George. This latest injunction would restrain and prevent certain named defendants from the Wet’suwet’en Nation from continuing to do so, and expanded the reach of the order to include the entirety of that forest service road.

But hidden in the decision is a paragraph of telling importance from the hearing judge about a ruling that is key to understanding this current contretemps: Delgamuukw v. British Columbia. “The aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation, despite the urging of the Supreme Court of Canada in Delgamuukw. It is apparent from their affidavit materials and submissions that the defendants are aware that their title claims remain outstanding.”

Which brings us to a previous disappointing chapter in Crown-Indigenous relations in Canada that makes this latest one even more tragic. Shortly after its release, members of the same Wet’suwet’en Nation, in conjunction with the Gitxsan, filed a legal appeal of the 1990 trial decision in Delgamuukw, which was heard in the same B.C. Supreme Court. The Delgamuukw case sought declarations of ownership and jurisdiction (later amended to aboriginal title) over 58,000 square kilometres of land in British Columbia; in the case of the Wet’suwet’en Nation, their traditional unceded territory (yin’tah) consists of 22,000 square kilometres.

After 318 days of evidence presentation and 56 days of closing arguments, the trial judge ultimately ruled against the plaintiffs. But three years later, five judges of the B.C. Appeals Court unanimously rejected that ruling, ordering the case back to trial to determine the nature and scope of the aboriginal rights of the Wet’suwet’en and Gitxsan peoples. And on further appeal to the Supreme Court of Canada, the country’s highest court ordered a new trial in 1997 because of the trial judge’s treatment of the various kinds of oral histories that were presented at trial, which were very supportive of and important to the Wet’suwet’en and Gitxsan peoples’ legal position, but were rejected. Antonio Lamer, the Supreme Court’s chief justice at the time, stated that had the oral history evidence been correctly assessed and given the legal weight it was entitled to at trial, the trial judge’s findings of fact might well have been different.

In ordering a new trial, however, the then-Chief Justice wrote these words, which are often repeated in legal circles: “By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow, at p. 1105, s. 35(1) ‘provides a solid constitutional base upon which subsequent negotiations can take place.’ … Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.

Which now takes us to this place in history. Thirty-six years after the Wet’suwet’en and Gitxsan first entered the Canadian justice system in good faith, honouring the processes of the court in pursuit of affirmations and declarations relating to ownership, jurisdiction, rights and title with respect to identified lands in British Columbia, a final trial has not taken place on Delgamuukw, nor has a settlement and resolution of the outstanding legal issues been reached.

And the injunction, fuelled in part by this decades-long legal limbo, just shows how unproductive any real attempts at good-faith negotiations have actually been for anything resembling reconciliation between the Wet’suwet’en and Gitxsan peoples and the Crown.

This is a wrong that is completely unconscionable. It is a wrong that amounts to a deep injustice. It is proof again of the maxim that justice delayed is justice denied.

Is it any wonder then that people, whose backs are against the wall and who have deep spiritual and cultural connections to their traditional lands and waters, have asserted customary Wet’suwet’en law and authority through blockades and other means?

From the perspective of the named defendants, they were legally asserting Wet’suwet’en traditional laws and authority in unceded Wet’suwet’en territory. Further, from the Indigenous legal perspective, and flowing from Wet’suwet’en traditional governance structures, Coastal GasLink required the nation’s consent and authorization to enter upon and to construct works in unceded Wet’suwet’en lands. That consent had not been given through the traditional governance structures.

Yet from the point of view of the [racist?] judge hearing the injunction, Wet’suwet’en customary laws could not be recognized. “There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. 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.”

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 injunction ruling also added in part: “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 has been the case – the question of their rights and title repeatedly bounced around and shirked for others to decide – for decades. If not now, then when?

What was not written in the ruling was that the evidence of aboriginal title, use, possession and occupation of the identified subject lands in the Delgamuukw case was strong, compelling and arguably very convincing, when assessed through the appropriate legal principles and with the proper weight to be given to the oral-history evidence provided at the original trial.

When examined through a larger lens, and with an understanding that justice has been unconscionably delayed with respect to the Delgamuukw case, the injunction court’s condemnation and disapproval ought not to have rested only on the shoulders of those people connected to the Wet’suwet’en Nation and the people supporting them.

Rather, and perhaps far more important, the court’s condemnation and disapproval ought to have been directed toward all those members of the Canadian public who, at one time or another between 1984 and 2019, have held and possessed positions of power and authority both inside and outside the Canadian justice system. They could have affirmed and recognized aboriginal rights and title. They could have ensured that land-claim cases such as Delgamuukw (of which there are many outstanding in this country) are tried, or resolved and settled, within a reasonable period of time.

Justice delayed, and therefore justice denied. This is the real story behind the injunction that has labelled people as obstructing, impeding and blocking access to unceded Wet’suwet’en territorial lands – people who are members of the Wet’suwet’en Nation, the unextinguished laws of which were found by the injunction-hearing judge to clearly exist on their own independent footing.

Open Letter from the BCCLA on the Injunction Granted to Coastal GasLink by BCCLA, January 10, 2020

The BCCLA is highly concerned about the developing situation in Wet’suwet’en territories.

On December 31st the B.C. Supreme Court granted an injunction and enforcement order to Coastal GasLink for their natural gas pipeline project on Wet’suwet’en territory in Northern British Columbia. Under Anuk ‘nu’at’en, Wet’suwet’en clans opposed all pipeline proposals and have not provided free, prior, and informed consent to Coastal Gaslink to do work on Wet’suwet’en lands.

In an open letter to the RCMP, Government of Canada, the province of British Columbia, and Coastal Gaslink, the BC Civil Liberties Association urges Coastal Gaslink and the RCMP not to enforce the injunction order at this time, to allow for a peaceful resolution between the Wet’suwet’en, Coastal GasLink, and the provincial and federal governments. The BCCLA stresses that lethal force is an absolutely unacceptable and abhorrent response to the current peaceful exercise of Wet’suwet’en law (Anuk ‘nu’at’en).

January 10, 2020
Attn: RCMP Commissioner Brenda Lucki
RCMP Deputy Commissioner Jennifer Strachan
Hon. Bill Blair, Minister of Public Safety and Emergency Preparedness,
Government of Canada
Hon. Carolyn Bennett, Minister of Crown-Indigenous Relations,
Government of Canada
Hon. Mike Farnworth, Minister of Public Safety and Solicitor General,
Province of British Columbia
Hon. Scott Fraser, Minister of Indigenous Relations and Reconciliation,
Province of British Columbia
David Pfeiffer, President, Coastal GasLink
Tiffany Murray, Indigenous Relations, Coastal GasLink
Dear Commissioner Lucki, Deputy Commissioner Strachan, Minister Blair, Minister
Bennett, Minister Farnworth, Minister Fraser, Mr. Pfeiffer, and Ms. Murray,

Re: Interlocutory Injunction Granted to Coastal GasLink

We, the British Columbia Civil Liberties Association (“BCCLA”), write regarding the
interlocutory injunction granted to Coastal GasLink on December 31, 2019 in connection
with the use of Wet’suwet’en territories, and concerns about potential imminent
escalation of the use of force by the Royal Canadian Mounted Police (“RCMP”).

The BCCLA urges Coastal Gaslink and the RCMP not to enforce the injunction order at
this time, to allow for a peaceful resolution between the Wet’suwet’en, Coastal GasLink,
and the provincial and federal governments.

The Wet’suwet’en assert continuous jurisdiction and unextinguished rights and land
title. The Supreme Court of Canada recognized that constitutionally-protected
Aboriginal title includes the right to use, enjoy, benefit from, occupy and pro-actively
manage the land (Delgamuukw v. British Columbia, [1997] 3 SCR 1010; Tsilhqot’in Nation
v. British Columbia, [2014] 2 SCR 256). Indigenous Rights and Title requires the Crown and industry to obtain consent to use the land, and to do otherwise would infringe on that
constitutionally-protected right.

We remind the RCMP that the Constitution is the ultimate law that they are charged to
uphold. As agents of the Crown, the RCMP must respect the constitutionally-protected rights of Indigenous peoples.

Furthermore, the British Columbia legislature passed the Declaration of the Rights of
Indigenous Peoples Act [SBC 2019] C 44, in November 2019, to affirm the United Nations
Declaration on the Rights of Indigenous Peoples (“UNDRIP”) as well as ensure the
consistency of provincial laws with UNDRIP. In December 2019, the United Nations
Committee on the Elimination of Racial Discrimination [“CERD”] called upon Canada to
“immediately halt the construction and suspend all permits and approvals for the
construction of the Coastal GasLink pipeline in the traditional and unceded lands and
territories of the Wet’suwet’en people, until they grant their free, prior, and informed
consent, following the full and adequate discharge of the duty to consult.”(U.N. CERD,
Prevention of Racial Discrimination, Including Early Warning and Urgent Procedure, 100th Sess.,1, (25 November-13 December 2019).

We further remind the RCMP that they have a responsibility to ensure public safety, including the safety of Wet’suwet’en people and their invited guests. We are highly concerned about the excessive level of force, including lethal force, which the RCMP discussed and planned for its raid of Gidimt’en checkpoint in January 2019, as recently revealed by investigative reporting. The BCCLA stresses that lethal force is an absolutely unacceptable and abhorrent response to the current peaceful exercise of Wet’suwet’en law (Anuk ‘nu’at’en). We urge that the RCMP “act with integrity, fairness and impartiality, and do not compromise or abuse their authority, power or position,” as they work towards a peaceful resolution of this issue (RCMP, SOR/2014-281). De-escalation, transparency, accountability, and communication with the Wet’suwet’en Nation and their representatives is critical.

In addition, the BCCLA strongly urges the RCMP to refrain from instituting exclusion zones that prohibit the public, invited guests of the Wet’suwet’en, and media from accessing Wet’suwet’en territories. Freedom of the press is enshrined in the Canadian Charter of Rights and Freedoms, 1982. Police-enforced media and public exclusion zones violate the Charter by seriously impeding freedom of expression. The BCCLA recognizes that Wet’suwet’en law (Anuk ‘nu’at’en) and Title includes the right of Wet’suwet’en to control access to and exclusion from their territory.

In our view, the injunction should not be enforced at this time. The Crown, the RCMP, and Coastal GasLink must prioritize peaceful resolution with the Wet’suwet’en. Any such resolution must respect the Wet’suwet’en’s constitutionally-protected Aboriginal
title, UNDRIP, and the goal of genuine and meaningful respect and reconciliation
between the Crown and Indigenous governments. The credibility of the provincial and
federal governments as rights-respecting bodies—not to mention Canada’s international
reputation—depend on it.

Maggie Knight, Acting Executive Director & Carly Teillet Community Lawyer

CC: Office of the Wet’suwet’en Hereditary Chiefs
Hon. Doug Donaldson, Minister of Forests, Lands, Natural Resource Operations and Rural
Development, Province of British Columbia
Hon. Michelle Mungall, Minister of Energy, Mines and Petroleum Resources, Province of British Columbia

Signed letter in full here.

What the Wet’suwet’en case says about how Canadian courts address Indigenous law by Amy Smart, The Canadian Press, Jan 9, 2020, Times Colonist

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.

… “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. [Typical judicial (extremely expensive) bounce crap used to delay deny delay deny deflect deny deflect delay etc across Canada, including the nine Supreme Court judges in Ernst vs AER. Then Chief Justice Beverley McLachlin ordered a constitutional question for Ernst’s hearing (which cost Ernst a lot of money) with all nine judges refusing to answer it, wasting Ernst’s hard earned savings and her time, her lawyers time; the AER’s time and the court’s time and denying Ernst her guaranteed rights under the Charter! Judges are intentionally and abusively kicking the Wet’suwet’en back and forth like a tennis ball and they bloody well know it, so does Horgan et al, and Coastal GasLink.]

“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. [Tennis ball]

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.”

Refer also to:

All Eyes on Wet’suwet’en: International Call for Week of Solidarity! Canada’s “Rule of Law” exposes it’s public interest harming, corporate interest protecting, dark underbelly – again. Thank all that is good: ***Unist’ot’en evict Coastal Gaslink from their Territory*** and Hereditary Chiefs of all 5 Wet’suwet’en clans reject BC Supreme Court Justice Marguerite Church’s decision, which criminalizes Anuk ‘nu’at’en (Wet’suwet’en law)!

Oh Racist Colonial Canada: As vile under Trudeau as Harper! Police prepared to shoot Wet’suwet’en land defenders; Documents show Commanders argued “lethal overwatch is req’d” – a term for deploying snipers – like in Elsipotog in 2013. RCMP commanders also instructed officers to “use as much violence toward the gate as you want.” PS Merry Christmas.

“Corruption … At A Gallop.” Ex-Justice Minister Peter MacKay urges: “Respect the Rule of Law” while the RCMP, Encana, AER, Alberta and Harper governments busily break it?

Whopping Legal Bills, Justice grows unaffordable for many Canadians, Access to justice is profoundly unequal in Canada

HOW MANY RACIST JUDGES (and politicians) in Canada?

How prevalent is racism (and misogyny) among Canadian lawyers & judges?

Recognizing multiple legal systems: Decolonizing our understandings of “The” Law with Val Napoleon, indigenous scholar and law professor, being reminded to never think of Canada legal system as “the only” legal system.

Delay in Reasons for Judgment: Justice Delayed is Justice Denied

2017 07 27: Diana Daunheimer on Supreme Court of Canada rulings on National Energy Board approvals: Clyde River & Line 9: “It’s a wash for our soiled SCC”

The rulings released yesterday demonstrate what happens to our Supreme Court, when fossil fuel interests are yanking puppet strings in the hallowed halls of justice.

2017 03 25: Oh Canada! Once-imprisoned lawyer (for child pornography) one step closer to getting his licence to practise law in Ontario, Two out of three lawyers on Law Society of Upper Canada tribunal decide he’s of ‘good character.’ Dissenting opinion finds Ronald Davidovic failed to prove he was rehabilitated [What are judges, but lawyers]

2017 01 21: Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”

2016 05 30: The Cost of Justice Project: Legal system problems cost Canadians billions

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