Feb. 28, 2020

Wet' suwet’en and Canada’s aboriginal law – Is Canada breaking Its own laws?

For Non Lawyers Like Me – Wet'suwet’en Aboriginals And Canada’s Aboriginal Law  – Is Canada Breaking Is Own Laws? My Views. 

Canada’s Aboriginal Rights and Title 

The 1982 Constitution Act, Section 35, established the groundwork for modern day interpretation of Aboriginal Rights and Title on non-treaty land, much of which is in British Columbia.

Flowing from this Section 35 various Aboriginal groups went to court to determine its meaning. Several important SCOC decisions interpreted the section to mean that any new development on land claimed by aboriginal groups as their traditional territory required meaningful consultation and accommodation with the aboriginal group.  

Hence, any proponent wanting to conduct any type of development on the traditional land must first sit down with the aboriginal group in question, meaningfully consult with them and accommodate as far as possible their concerns. This often led to agreements between the parties that provided employment and other benefits flowing out of the agreements to the aboriginal group. 

By 2014 the evolution of the meaning of Section 35 had reached the stage where not only rights of Aboriginal people came into play and mandatory consultation and accommodation but the question of title of the traditional land.  

The Tsilqot’in aboriginal group of British Columbia went to court in 2014 and the Supreme Court, for the first time, awarded title of land to the Tsilqot’in people. 

Here is the Court’s words  

“Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.

Where title is asserted, but has not yet been established, s.35  of the Constitution Act, 1982  requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.

Once Aboriginal title is established, s.35  of the Constitution Act, 1982  permits incursions on it only with the consent of the Aboriginal group 

or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group.” 

To this point no other Aboriginal group has been awarded title to land under Section 35 in Canada. 

Note  –  CONSENT of Aboriginal groups who have title but it can be overridden. 

Today the Wet’suwet’en aboriginal group is claiming they must consent to development on their land, a pipeline. 

But the Wet’suwet’en do not have title under Canadian Law. 

So what was necessary under Canadian Law was for consultation and accommodation by the pipeline proponent, all of which has been done and agreements signed with representatives of the aboriginal people. 

Consent was not necessary.

The fly in the ointment?

 The United Nations Declaration On The Rights Of Aboriginal Peoples (UNDRIP) passed by the General Assembly in 2007. One of the articles is:

Article 19

“States shall consult and co-operate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent be- fore adopting and implementing legislative or administrative measures that may affect them.’

Canada ‘s House Of Commons passed a bill C-262 (Third reading on May 30, 2018) in having Canada’s laws harmonize with the UN Declaration. The Senate has considered it and a Senate Committee report was made to full Senate,  but The Senate has not approved it. It died on the order paper of the Senate last year. So my understanding is that it is not the law of Canada as we speak. 

But the BC legislature passed a law harmonizing the UN Declaration with BC Law in November, 2109. This would now likely conflict with existing Canadian law regarding consent. My understanding is that legally Canadian Law would override BC law.  

So interesting isn’t it? 

Canadian Law says one thing  – consent with an override. 

UN Declaration says another  – consent, no override. 

As I said, the behaviour of our Governments as we speak leads one to believe that the UN Declaration is taking precedence (even though not Canadian law) over our own developing Canadian lLaw as defined by the Supreme Court of Canada on this issue.