A blog post by Margaret Cyr, Junior Associate.
The Canadian government cites a renewed, nation-to-nation, government-to-government, nation-to-Inuit-Crown relationship based on governing principles of a commitment to good faith, the rule of law, democracy, non-discrimination, and respect for human rights with Indigenous Peoples. [1] But recent events surrounding the Gidimt’en clan of the Wet’suwet’en Nation points to the deeply fractured, extractive, colonist relationship that persists between Canada and native tribes, notwithstanding their public statements aimed at achieving reconciliation. [2]
This specific controversy pertains to the Coastal Gaslink pipeline, which runs through traditional Wet’suwet’en territory, and was approved by the Nation’s elected band councils–but not by the hereditary chiefs of the five Wet’suwet’en clans. [3] The Clans refusal to the proposed pipeline cites watershed and wildlife damage. [4] Access to these indigenous lands naturally finds conflict between Canadian law, and Wet’suwet’en law. The view that aboriginal titles “crystallized” when the Crown asserted sovereignty over indigenous lands is perplexing, due in part to the grey area of layering radical titles, which is justification for the de facto seizure and control of what is now known as Canada. [5] Providing further justification for the doctrine of discovery and colonialism, the recent decision in Thomas and Saik’uz Firth Nation v. Rio Tinto Alcan Inc. unveils that while justices are painfully aware of 150 years of systemic discrimination, forced assimilation, genocide, and present day actions that blatantly violate UNDRIP principles, Justice Kent states “It remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the law respecting Aboriginal rights including Aboriginal title”. [6]
It is uncommon for indigenous peoples to prevail against corporations and the Canadian government. For instance, 76% of injunctions against indigenous peoples were granted, whereas 81% of injunctions filed by indigenous peoples against corporations, and 82% against the government, were denied. [7] In part due to costly and lengthy litigation needed to secure land and water protections, nations struggle to secure the injunctions that corporations readily win when economic loss is at risk. [8] If the Canadian government wishes to live up to its goal of reconciliation, [9] it must reaffirm these ambitions through favorable caselaw that doesn’t hide behind precedent, and by stopping state sanctioned police brutality against indigenous peoples that are defending what’s theirs.
[1] Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, Department of Justice Canada 3 (2018) https://www.justice.gc.ca/eng/csj-sjc/principles.pdf
[2] Id.
[3] Braela Kwan, Indigenous activists fight British Columbia’s pipelines to the last mile, Cross Cut (March 18, 2021) https://crosscut.com/environment/2021/03/indigenous-activists-fight-british-columbias-pipelines-last-mile
[4] Id.
[5] Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc., [2022] S.C.R. (Can.). https://www.bccourts.ca/jdb-txt/sc/22/00/2022BCSC0015.htm
[6] Id.
[7] Hayden King et al., Land Back, The Yellowhead Institute 30 (Oct. 2019) https://redpaper.yellowheadinstitute.org/wp-content/uploads/2019/10/red-paper-report-final.pdf
[8] Id.
[9] Ry Moran, Truth and Reconciliation Indigenous Peoples Atlas of Canada, Canadian Geographic (Jan. 4, 2022) https://www.rcaanc-cirnac.gc.ca/eng/1400782178444/1529183710887