RCMP raid Gidimt'en checkpoint

A dispute over title to land is a civil — not a criminal — matter

The Supreme Court has said repeatedly that Indigenous claims need to be settled by respectful negotiations leading to reconciliation. The court injunction and recent arrests do just the opposite

The arrest last week of 14 pipeline protesters raises serious issues about the role of courts and police in disputes over Indigenous land.

The protesters were participating in a blockade of an access road to the Coastal GasLink pipeline project near Houston, B.C. In December, Coastal obtained an interim injunction from the B.C. Supreme Court ordering the protesters to remove the blockades.

When the protesters refused and negotiations failed, the RCMP moved in and made the arrests for alleged violation of the injunction.

The access road and this section of the pipeline are on land that the Wet’suwet’en Nation claim as part of their traditional territory. After a decade in court, the Wet’suwet’en won a significant victory in 1997 in the Delgamuukw case. While not deciding the substantive issues, the Supreme Court of Canada ruled that Indigenous nations that can prove they were in exclusive possession of land at the time of Crown assertion of sovereignty have constitutionally protected Aboriginal title.

The Supreme Court applied the Delgamuukw decision in 2014 in the Tsilhqot’in Nation case. The court ruled that the Tsilhqot’in have Aboriginal title to the portion of their traditional territory in the Interior of B.C. where they had proven exclusive occupation.

Significantly, the trial judge and B.C. Court of Appeal decided that this title is vested in the Tsilhqot’in Nation as a whole, not in the bands that exercise powers delegated to them by the federal Indian Act. This ruling was accepted by the Supreme Court.

This means that decisions regarding the Tsilhqot’in’s Aboriginal title land need to be made by their traditional government that exercises inherent jurisdiction, not by individual band councils because they do not have authority to make decisions for the nation.

In the context of the current protests, the Wet’suwet’en have a claim to the land in question by virtue of the Delgamuukw and Tsilhqot’in decisions.

In opposition, the province claims the same land as Crown land. A dispute over title to land is a civil — not a criminal — matter. If not settled by agreement, the courts end up resolving these disputes. In this case, no such resolution has taken place.

Instead, the province has acted as though this were Crown land and has authorized use of it for a pipeline project that the traditional Wet’suwet’en government opposes.

Based on Tsilhqot’in Nation, decisions on land use outside of reserves have to be made by traditional governments, not band councils. So the fact that Wet’suwet’en band councils may have approved the project is irrelevant.

Courts can issue interim injunctions in land disputes, authorizing one side to act as though it owns the land until the matter is finally resolved. Courts grant these injunctions mainly on the basis of balance of convenience — which party will suffer the most if the injunction is or is not granted.

Pipelines are short-term development projects whose environmental consequences make them highly controversial. The Wet’suwet’en, on the other hand, have been governing their territory in environmentally respectful and sustainable ways for thousands of years. So how can the balance of convenience favour a resource exploitation company in these circumstances?

Projects like this on Indigenous territories should not take place without the free, prior, informed consent of the people concerned, as required by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has endorsed and the Trudeau government has promised to implement.

Nor should the police be placed in the awkward position, which many of them likely find uncomfortable, of having to arrest peaceful protesters involved in a civil, not criminal, matter.

The Supreme Court has said repeatedly that Indigenous claims need to be settled by respectful negotiations leading to reconciliation. The court injunction and recent arrests do just the opposite.

Professor Kent McNeil is a faculty member at Osgoode Hall Law School since 1987, and was formerly the Research Director…

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