The Honourable Stephen O’Neill was a judge on the Ontario Superior Court of Justice from 1999 to 2015 and is currently an associate lawyer at Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors.
“Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered." This was stated by Beverley McLachlin, then the chief justice of the Supreme Court of Canada, in the seminal 2004 legal decision Haida Nation v. British Columbia (Minister of Forests). She continued: “Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights imbedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.”
She concluded in Haida: "[W]hile this process [of reconciling Indigenous claims with Crown sovereignty] continues, the honour of the Crown may require it to consult, and where indicated, accommodate Aboriginal interests.”
These words – and the way in which they have rung hollow – echo even more in the wake of the B.C. Supreme Court’s decision on New Year’s Eve to grant an interlocutory injunction order in favour of Coastal GasLink Pipeline Ltd., which has received approval to build a 670-kilometre natural-gas pipeline from west of Dawson Creek, B.C., to a liquefied-natural-gas export facility near Kitimat. A portion of that pipeline would traverse traditional Wet’suwet’en lands.
This latest injunction represents a blow to the efforts to oppose the project in the area, as this order could potentially criminalize those land protectors who, with the support of the Wet’suwet’en Nation, have been working for years to uphold customary Wet’suwet’en law; for about a year, Wet’suwet’en members have blockaded a remote stretch of forest service road and a bridge using checkpoints on their traditional territory about 300 kilometres west of Prince George. This latest injunction would restrain and prevent certain named defendants from the Wet’suwet’en Nation from continuing to do so, and expanded the reach of the order to include the entirety of that forest service road.
But hidden in the decision is a paragraph of telling importance from the hearing judge about a ruling that is key to understanding this current contretemps: Delgamuukw v. British Columbia. “The aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation, despite the urging of the Supreme Court of Canada in Delgamuukw. It is apparent from their affidavit materials and submissions that the defendants are aware that their title claims remain outstanding.”
Which brings us to a previous disappointing chapter in Crown-Indigenous relations in Canada that makes this latest one even more tragic. Shortly after its release, members of the same Wet’suwet’en Nation, in conjunction with the Gitxsan, filed a legal appeal of the 1990 trial decision in Delgamuukw, which was heard in the same B.C. Supreme Court. The Delgamuukw case sought declarations of ownership and jurisdiction (later amended to aboriginal title) over 58,000 square kilometres of land in British Columbia; in the case of the Wet’suwet’en Nation, their traditional unceded territory (yin’tah) consists of 22,000 square kilometres.
After 318 days of evidence presentation and 56 days of closing arguments, the trial judge ultimately ruled against the plaintiffs. But three years later, five judges of the B.C. Appeals Court unanimously rejected that ruling, ordering the case back to trial to determine the nature and scope of the aboriginal rights of the Wet’suwet’en and Gitxsan peoples. And on further appeal to the Supreme Court of Canada, the country’s highest court ordered a new trial in 1997 because of the trial judge’s treatment of the various kinds of oral histories that were presented at trial, which were very supportive of and important to the Wet’suwet’en and Gitxsan peoples’ legal position, but were rejected. Antonio Lamer, the Supreme Court’s chief justice at the time, stated that had the oral history evidence been correctly assessed and given the legal weight it was entitled to at trial, the trial judge’s findings of fact might well have been different.
In ordering a new trial, however, the then-Chief Justice wrote these words, which are often repeated in legal circles: “By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow, at p. 1105, s. 35(1) ‘provides a solid constitutional base upon which subsequent negotiations can take place.’ … Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.”
Which now takes us to this place in history. Thirty-six years after the Wet’suwet’en and Gitxsan first entered the Canadian justice system in good faith, honouring the processes of the court in pursuit of affirmations and declarations relating to ownership, jurisdiction, rights and title with respect to identified lands in British Columbia, a final trial has not taken place on Delgamuukw, nor has a settlement and resolution of the outstanding legal issues been reached. And the injunction, fuelled in part by this decades-long legal limbo, just shows how unproductive any real attempts at good-faith negotiations have actually been for anything resembling reconciliation between the Wet’suwet’en and Gitxsan peoples and the Crown.
This is a wrong that is completely unconscionable. It is a wrong that amounts to a deep injustice. It is proof again of the maxim that justice delayed is justice denied.
Is it any wonder then that people, whose backs are against the wall and who have deep spiritual and cultural connections to their traditional lands and waters, have asserted customary Wet’suwet’en law and authority through blockades and other means?
From the perspective of the named defendants, they were legally asserting Wet’suwet’en traditional laws and authority in unceded Wet’suwet’en territory. Further, from the Indigenous legal perspective, and flowing from Wet’suwet’en traditional governance structures, Coastal GasLink required the nation’s consent and authorization to enter upon and to construct works in unceded Wet’suwet’en lands. That consent had not been given through the traditional governance structures.
Yet from the point of view of the judge hearing the injunction, Wet’suwet’en customary laws could not be recognized. “There has been no process by which Wet’suwet’en customary laws have been recognized in this manner. The aboriginal title claims of the Wet’suwet’en people have yet to be resolved either by negotiation or litigation. While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law.”
Denying Indigenous law any effectual meaning as “law,” and potentially criminalizing the actions taken under Wet’suwet’en customary law and authority, will not lead to reconciliation. Indeed, it is the antithesis to reconciliation, however that word may be interpreted in law or in practice.
The injunction ruling also added in part: “The defendants are posing significant constitutional questions and asking this court to decide those issues in the context of the injunction application with little or no factual matrix. This is not the venue for that analysis and those are issues that must be determined at trial." This has been the case – the question of their rights and title repeatedly bounced around and shirked for others to decide – for decades. If not now, then when?
What was not written in the ruling was that the evidence of aboriginal title, use, possession and occupation of the identified subject lands in the Delgamuukw case was strong, compelling and arguably very convincing, when assessed through the appropriate legal principles and with the proper weight to be given to the oral-history evidence provided at the original trial.
When examined through a larger lens, and with an understanding that justice has been unconscionably delayed with respect to the Delgamuukw case, the injunction court’s condemnation and disapproval ought not to have rested only on the shoulders of those people connected to the Wet’suwet’en Nation and the people supporting them. Rather, and perhaps far more important, the court’s condemnation and disapproval ought to have been directed toward all those members of the Canadian public who, at one time or another between 1984 and 2019, have held and possessed positions of power and authority both inside and outside the Canadian justice system. They could have affirmed and recognized aboriginal rights and title. They could have ensured that land-claim cases such as Delgamuukw (of which there are many outstanding in this country) are tried, or resolved and settled, within a reasonable period of time.
Justice delayed, and therefore justice denied. This is the real story behind the injunction that has labelled people as obstructing, impeding and blocking access to unceded Wet’suwet’en territorial lands – people who are members of the Wet’suwet’en Nation, the unextinguished laws of which were found by the injunction-hearing judge to clearly exist on their own independent footing.
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