Kent McNeil: Pipeline protests and the rule of law

The arrest of Wet’suwet’en and their supporters opposed to the Coastal GasLink pipeline is just the latest episode in a long story. Settlers have been taking Indigenous land — often without consent — since the moment Europeans set foot in North America. This has to stop.

Premier John Horgan says the arrests are justified because the rule of law must be maintained. Whose law? Not the law of the Wet’suwet’en. He was referring instead to Canadian law that has been imposed on them without their consent. That law is used to “legalize” the taking of their land for a pipeline, over the opposition of the hereditary chiefs who have political authority on Wet’suwet’en territory.

But can this taking even be justified under Canadian law? In the 2004 Haida Nation case, the Supreme Court distinguished situations where Aboriginal title has been established by a court case or agreement from situations where it has not. Although the Haida had not yet established their title, B.C. still had to consult them before granting forestry licences on Haida Gwaii. But Haida consent was not necessary, as long as adequate consultation and appropriate accommodation took place.

The situation is different where Aboriginal title has been established because it is a property right acknowledged by Canadian law that has to be respected. That’s what the Supreme Court decided in Delgamuukw in 1997 and Tsilhqot’in Nation in 2014. Indeed, these rights are constitutionally protected, unlike other property rights in Canada. Nonetheless, the court held that Aboriginal title can still be infringed if governments can justify the infringement by meeting a strict test.

The test for justifiable infringement was created by the Supreme Court in Sparrow in 1990. The government first has to prove a compelling and substantial legislative objective for the infringement. If it gets over that hurdle, it has to demonstrate that it consulted with the titleholders, is infringing their rights as little as possible in the circumstances, and has offered compensation.

The Wet’suwet’en claim, but have not yet established, Aboriginal title. In Canadian law, they still have to be consulted before a pipeline crosses their territory. But with whom must consultation take place? Not band councils, whose authority under the federal Indian Act applies only to reserve lands. Canadian law is clear on this. According to the Delgamuukw decision, Aboriginal title is held by the Wet’suwet’en nation, so consultation must be with the leaders having requisite authority under Wet’suwet’en law, apparently the hereditary chiefs. Until that happens, pipeline construction cannot proceed.

What if adequate consultation with the hereditary chiefs takes place and they still refuse to consent to the pipeline? As a matter of Canadian law, construction can go ahead because they don’t have a veto. But in all likelihood, the pipeline will cross lands to which the Wet’suwet’en do have title, which the pipeline will have infringed. What then? In Tsilhqot’in Nation, the court said consent should be sought before any infringement of Aboriginal title. Absent consent, governments must meet the much stricter test for justifiable infringement.

Does a pipeline that many oppose for environmental and other reasons fulfil a compelling and substantial objective? Would any consultation that might take place meet the higher standard required for infringement of established title? Would the impairment be minimal? What would it cost to compensate the Wet’suwet’en? Would the pipeline have to be scraped if the justifiable infringement test had not been met? Governments need to consider these questions.

That is the position in Canadian law. Wet’suwet’en law is a different matter. My understanding is that the hereditary chiefs have the authority under their law to make decisions involving land use within Wet’suwet’en territory. The people blocking pipeline construction are respecting that authority and the Wet’suwet’en rule of law. If we are ever to achieve reconciliation in this country, we must accept that Canadian law is not the only applicable law. The rule of law demands that Indigenous legal systems be paid the same respect.

Kent McNeil is an emeritus professor of Osgoode Hall Law School in Toronto.