Wet’suwet’en, the Rule of Law, and Canada’s Origin Story: Lessons for a Shared Future

RCMP operations in Wet’suwet’en Territory, northern British Columbia since February 6, 2020 have set off an extraordinary chain of events across Canada. Statements of solidarity have poured in from labour unions, the BC Teachers Federation, universities, and groups representing racialized Canadians and religious minorities, to name just a few. Supporters, both Indigenous and non-Indigenous, have joined forces to blockade ports and rail lines across the country, challenging the economic and political status quo in Canada.

How did we get to this point, and what can we do about it?

Photo © Times Colonist

Photo © Times Colonist

Written by the IISAAK OLAM Foundation | March 2, 2020 | Victoria BC

[Disclosure: IISAAK OLAM Foundation is a non-profit organization based in Victoria on the Traditional Territories of the Lekwungen and WSÁNEĆ Nations, with a mandate to mobilize knowledge and build capacity for the conservation of biological and cultural diversity. We do not purport to be experts on Wet’suwet’en governance structures and protocols; the information we present here is merely a summary of what can readily be found online. A more nuanced understanding can be found by engaging directly with the people and leadership of the Wet’suwet’en Nation. Please see the websites of the Office of the Wet’suwet’en, Unist’ot’en Camp, and Gidimt’en Yintah Access.]

RCMP operations in Wet’suwet’en Territory, northern British Columbia since February 6, 2020 have set off an extraordinary chain of events across Canada. Statements of solidarity have poured in from labour unions, the BC Teachers Federation, universities, and groups representing racialized Canadians and religious minorities, to name just a few. Supporters, both Indigenous and non-Indigenous, have joined forces to blockade ports and rail lines across the country, challenging the economic and political status quo in Canada.

How did we get to this point, and what can we do about it?

In order to understand this conflict and potential solutions, it is essential to examine the history of Indigenous-settler relations in this country and the evolution of Canada’s present constitutional order. While the RCMP and politicians from British Columbia Premier John Horgan to Prime Minister Justin Trudeau and Leader of the Opposition Andrew Scheer go on ad nauseum about the rule of law, there is a serious misunderstanding about what this actually means. And this matters for reconciliation.

Speaking of the imminent police operation to make way for the Coastal GasLink pipeline on unceded Wet’suwet’en Territory, RCMP Assistant Commissioner Eric Stubbs stated on February 5 that “Orders and injunctions from the Supreme Court of British Columbia are … mandatory directions from the court. Police are not at liberty to choose which law to follow.”

Let’s unpack that statement.

Enforcement of the law cannot be limited to Canadian or Crown law. The imposition of Crown law in a place like British Columbia did not and cannot erase pre-existing Indigenous laws, jurisdictions, and relationships with the land.

Indigenous laws – in this case, those of the Wet’suwet’en Nation – are the oldest laws on this land. These laws are made, communicated, and upheld during the Bahlats, or Potlatch, in the great Feast Hall. Each of the five Wet’suwet’en clans is made up of house lineages, and leaders of each house are directly responsible for the stewardship and care of their house territories, or Yintah. Traditional Wet’suwet’en Law treats unauthorized trespassing on other clans’ territories very seriously. Wet’suwet’en Law on the land is much more than a body of rights – it is a responsibility, an ancient relationship with land and place that goes back many thousands of years. It includes a profound sense of responsibility to ensure the health and vitality of the land for the generations not yet born.

It was based on this pre-existing Wet’suwet’en Law that the Unist’ot’en House Group and Gidimt’en Clan established access points to their Yintah. It was also based in this law that on January 5, hereditary chiefs representing all five clans issued an eviction notice to “all Coastal GasLink staff and contractors currently trespassing on unceded Wet’suwet’en territory.” The eviction cited Coastal GasLink’s failure to obtain the consent of the clan and house chiefs as required under Wet’suwet’en Law.

The British Columbia Supreme Court decision granting the injunction requested by Coastal GasLink against Wet’suwet’en land defenders on December 31 argued that “[w]hile Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law.” However, as pointed out in excellent legal analysis by West Coast Environmental Law, this treatment of Wet’suwet’en law is contrary to both evolving case law and the Canadian constitution itself.

Indigenous law remains very relevant across Canada today, subject to the diverse governance systems of the Nations whose homelands make up this country. And, as Jody Wilson-Raybould wrote in a Globe and Mail article, Indigenous Nations are now rebuilding and revitalizing their governance systems and laws that have been actively suppressed and undermined by Canadian statutes such as the Indian Act. (From 1885 to 1951, Indigenous governance institutions such as the Potlatch and Sundance were indictable offenses under the Indian Act, although many communities kept the practices alive by going underground.)

In Canada, Europeans have not always been in a position to unilaterally control Indigenous Nations’ lands and lives. And this fact has important implications for understanding the evolution and place of Indigenous law in Canada today.

Over centuries, relations between Indigenous Nations and European Nations in what is now Canada were characterized by mutually beneficial arrangements such as Peace and Friendship Treaties in Atlantic Canada and the commercial relationships of the fur trade across this country. These relationships were far from perfect, and Europeans justified their claims to Indigenous land by invoking morally reprehensible notions such as terra nulius and the Doctrine of Discovery. However, the Europeans were forced by necessity to treat with Indigenous Peoples as Nations, and Treaty negotiations incorporated both Indigenous and European protocols and governance systems.

Indigenous laws and protocols also informed such landmark developments in Canada’s history as the Royal Proclamation of 1763, as well as the subsequent Treaty of Niagara in 1764, which was attended by more than 2,000 leaders representing 24 distinct Indigenous Nations. Neither the Royal Proclamation nor the Treaty of Niagara granted Indigenous Peoples their rights or sovereignty. Rather, the Royal Proclamation recognized a pre-existing reality: all lands not rightfully purchased or ceded to the Crown belonged to Indigenous Nations. The proclamation has since been incorporated into Section 25 of the Canadian constitution. The need for the Crown to obtain Title to Indigenous lands provided the impetus for the Numbered Treaties negotiated between 1871 and 1921 in what is now northern Ontario, Manitoba, Saskatchewan, Alberta, northeastern British Columbia, and the southern Northwest Territories. From the perspective of Indigenous Nations, these Treaties were meant to foster peaceful coexistence and sharing. The Treaties were not land surrenders, nor were they abdications of Indigenous Peoples’ rights, responsibilities, and relationships with the land. Rather, evidence points to Canada’s deceitful dealings with Indigenous Nations regarding the land surrender clause, as Sheldon Krasowski argues convincingly in his book No Surrender: The Land Remains Indigenous (University of Regina Press, 2019).

In most of British Columbia, including Wet’suwet’en Territory, no Treaties have ever been negotiated between Indigenous Nations and Crown governments, who have simply presumed authority on Indigenous Territories. In the years immediately following Canadian Confederation in 1867, competition existed between the new country and the United States of America over who would control the Pacific Coast between Alaska and what would become the states of Washington and Oregon. As such, the two British colonies of Vancouver Island and New Caledonia had a strong negotiating position when they decided to join Canadian Confederation as the Province of British Columbia in 1871. They agreed to join Canada on three conditions:

  1. That a railway be built at Canada’s expense to link British Columbia with the rest of the country;

  2. That the province be granted full control over lands and natural resources (by contrast, at this time Alberta, Saskatchewan, and most of Manitoba were still part of the federally-administered Northwest Territories);

  3. That “Indians, and Lands reserved for the Indians” would remain a federal responsibility as per Section 91 of the British North America Act (now the Canadian Constitution).

Thus, when British Columbia entered Canadian Confederation in 1871, the province’s borders looked just as they do today, which is true for only two other provinces – New Brunswick and Nova Scotia – as this map of Canada in 1871 illustrates.

In the years following British Columbia’s entry into Confederation, the federal government repeatedly admonished the province to negotiate Treaties with Indigenous Peoples; the provincial government’s intransigence laid the bedrock for the conflicts that persist in the province to this day – including the ongoing conflict in Wet’suwet’en Territory.

Even in the absence of Treaties in Wet’suwet’en Territory, the Canadian Constitution Act of 1982 and evolving case law provide pathways for Canadian law to include and uphold Indigenous law, including Wet’suwet’en Law. Section 35 of the Canadian Constitution states that “The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” In 1997, the Supreme Court of Canada recognized the existence of Indigenous Peoples’ Aboriginal Title to their traditional territories in Delgamuukw v. British Columbia.

It is ironic that a court injunction, served by the RCMP on behalf of an energy corporation, has now occurred not just once but twice on the very territories at issue in the Delgamuukw case. In fact, British Columbia’s persistent efforts to undermine Indigenous Peoples’ rights, responsibilities, and relationships with the land only intensified following the Delgamuukw decision. An investigation by the Narwhal reveals the extent to which lobbying by forestry, fishing, mining, ranching, and other sectors has influenced the British Columbia government’s approach to Indigenous Peoples’ Aboriginal Rights and Title since Delgamuukw. Dave Caul, current deputy minister of Indigenous Relations and Reconciliation in the Horgan government, even suggested following Delgamuukw that the government should consider initiating litigation if it would serve to limit Indigenous Peoples’ rights.

The obstinate refusal by both British Columbia and Canada to respect Indigenous Peoples’ rights, responsibilities, and relationship with the land continues to this day and is at the heart of the present dispute on Wet’suwet’en Territory. Rather than negotiate and share jurisdiction with Indigenous Nations as the Supreme Court of Canada admonished in Delgamuukw, British Columbia has continued along the path of seeking extinguishment of inherent Indigenous rights and responsibilities to the land through the British Columbia Treaty Process, which has been resisted by many Indigenous Nations, including the Wet’suwet’en. In a perverse variation on this theme, impact-benefit agreements between Coastal GasLink and elected Wet’suwet’en band councils have sought “irrevocable consent,” while attempting to impose a gag order on all opposition by community members.

And to what end? British Columbia and resource industries in the province have long sought certainty, the ability to continue unfettered colonial extraction of natural resources from Indigenous lands. But as Indigenous Nations such as the Wet’suwet’en strengthen and rebuild their capacity to govern and steward traditional territories, and as alliances with Indigenous and non-Indigenous Peoples across Canada grow, these approaches to achieving certainty, which have always been unjust, will also become increasingly untenable. It is no coincidence that demonstrations in solidarity with the Wet’suwet’en have targeted ports and railways to disrupt the flow of capital and natural resources that sustain the economic status quo in Canada.

It is also significant that the Kanyen’kehà:ka (Mohawk) Nation in Tyendinaga allied themselves in solidarity with the Wet’suwet’en by maintaining the longest rail shutdown in Canadian history. Tyendinaga (Thayendanegea) is the Mohawk name of Joseph Brant, a statesman, diplomat, and ally of the British in North America. Thanks to the efforts of Joseph Brant, the Mohawks and other nations in the Haudenosaunee Confederacy allied themselves with the British against the French during the Seven Years’ War and later against the American colonists during the American Revolution and the War of 1812. Canada (Kanata) means ‘village’ in the Haudenosaunee language, and it is alliances with the Haudenosaunee and other Indigenous Nations that made it possible for Canada to exist. Without these alliances, it is doubtful that the British would have been able to stave off American expansionism into Canada. 

In their meeting on February 15, 2020 with Marc Miller, Minister of Indigenous Services, the Mohawks of Tyendinaga reminded Canada of their ancient and enduring alliance with the British Crown and stated their desire to assist agents of the Canadian government to “[find] some peace because they’re out of practice.” In other words, the Mohawk are exercising their responsibilities as allies of the Crown to bring peace to their allies in the Wet’suwet’en Nation. Tragically, Canada ultimately refused to accept this gift and to resolve the issues peacefully, resorting again to police force to remove the Tyendinaga blockade. This action backfired, leading to further proliferation of railway, highway, and port blockades.

Ultimately, there can be no peace and no certainty for industry without certainty and justice for Indigenous Peoples, including the Wet’suwet’en hereditary leaders who are the stewards of their respective clan and house territories. The Wet’suwet’en hereditary chiefs have demonstrated their willingness to compromise and find mutual solutions. They even proposed an alternate route for the Coastal GasLink pipeline that would avoid the most ecologically sensitive and culturally significant areas of the territory, but the company unilaterally refused.

What are the solutions to the current impasse?

First of all, Canada, British Columbia, and the RCMP would do well to abide by their own laws. A mere court injunction cannot be allowed to trump the constitution, the highest law in the land. Section 35 of the constitution, as well as landmark cases such as Delgamuukw, Haida, and Tsilhqot’in, provide a bridge for Indigenous law to interact with Canadian law. The United Nations Declaration on the Rights of Indigenous Peoples also sets a high standard for recognizing Indigenous Peoples’ governance systems and relationships with their territories. British Columbia passed legislation to implement UNDRIP just last November, but the province’s decision to continue forcing through a pipeline without the consent of the Wet’suwet’en hereditary leadership has called into question the government’s motives in passing this legislation.

It is high time that British Columbia and Canada stopped seeing this as a zero-sum game. Decades of repression and fraudulent dealings have not succeeded in either extinguishing Indigenous Peoples’ rights or bringing certainty for industry. British Columbia and Canada can no longer brush Indigenous Peoples aside as if their rights, responsibilities, and relationships with the land were irrelevant.

Rather, revitalizing strong Indigenous Nations, traditional governance systems, and stewardship practices will build a better future for Indigenous Peoples and all Canadians. In a joint statement, the Mohawks and Wet’suwet’en have reaffirmed their commitment to peace. The Wet’suwet’en Nation, which is less divided than opportunistic corporations, non-Indigenous politicians, and mainstream media have portrayed them to be, must be allowed the space to work out internal disagreements through their own governance system. As Jody Wilson-Raybould argued, there was also a need to pull back both the RCMP and temporarily stop Coastal GasLink’s work to allow true Nation-to-Nation discussions to take place. As Chief Woos stated, they are not prepared to talk with a gun pointed at their heads.

The fierce solidarity with Wet’suwet’en is a gift, a wakeup call for Canada and the increasingly untenable status quo. Finally, after three weeks of direct action to hold Canada accountable, the federal and provincial governments sent their respective Indigenous Relations ministers to meet directly with the Wet’suwet’en hereditary chiefs. The outcome of these negotiations, which concluded on March 1, have not yet been publicly released, but there is still fundamental disagreement between the hereditary chiefs, British Columbia, and Canada over the Coastal GasLink pipeline. There is still the risk that governments will retreat into their tired old adversarial patterns of dealing with Indigenous Peoples. But maybe, just maybe, we could be on the crux of the transformation that this country so badly needs, back to the original principles of Peace and Friendship that guided Indigenous-newcomer relations long before Canadian confederation. 

It is time to get on the right side of history and rediscover our origins as we work toward shared jurisdiction, shared stewardship, and a shared future as Indigenous Peoples and situated guests on these territories that we call Canada.