Photo by Mike Graeme

The Wet'suwet'en, Aboriginal Title, and the Rule of Law: An Explainer

February 13, 2020

By Kate Gunn & Bruce McIvor

The RCMP’s enforcement of the Coastal GasLink injunction against the Wet’suwet’en has ignited a national debate about the law and the rights of Indigenous people.

Unfortunately, misconceptions and conflicting information threaten to derail this important conversation. Below, we attempt to provide clear, straightforward answers to address some of these fundamental misunderstandings.

What about support for the project from the Wet’suwet’en elected Chiefs and Councils?

Media outlets across the country have repeatedly reported that First Nations along the pipeline route, including the Wet’suwet’en, have signed agreements in support of the project.

Underlying this statement are several key issues that require clarification.

First, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils.

The Chief and Council system exists under the Indian Act, a piece of federal legislation. It was introduced by the federal government in the 19th century as part of Canada’s attempts to systematically oppress and displace Indigenous law and governance.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday'way Aboriginal title case. They provided the court with exhaustive and detailed evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Second, Indigenous peoples hold rights to lands in Canada which extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system.

Third, the fact that First Nations have signed agreements with Coastal GasLink does not, in itself, mean that its members support the project without qualification.

Across the country, Indian Act band councils are forced to make difficult choices about how to provide for their members – a situation which exists in large part due to the process of colonization, chronic underfunding for reserve infrastructure and refusal on the part of the Crown to meaningfully recognize Indigenous rights and jurisdiction.

The fact that elected Wet’suwet’en Chiefs and Councils have entered into benefit agreements with Coastal GasLink should not be taken as unconditional support for the project.

Finally, similar to how Canada functions as a confederation with separate provinces with their own authority, First Nation decisions on major projects are not simply a matter of majority rules.

The Quebec provincial government made it clear that it was opposed to and would not sanction the proposed Energy East pipeline. The federal government and other provincial governments respected Quebec’s right to make this decision. Similarly, First Nations often disagree about major projects. One cannot speak for another and the majority cannot simply overrule the minority or individual First Nations.

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