Delgamuukw did not settle the question of Wet’suwet’en title

As protests in support of Wet’suwet’en hereditary chiefs opposed to the Coastal GasLink pipeline continue to rage across the country, a number of Wet’suwet’en and their supporters have pointed to the landmark Delgamuukw decision to support their position.

That position is that the hereditary chiefs are the rightful title-holders of traditional land, and that only they can make decisions about what happens on that land. They cite the landmark Supreme Court of Canada Delgamuukw decision as affirming Wet’suwet’en title.

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Except it didn’t.

“There are people who are saying that the Delgamuukw decision affirms Gitxsan and Wet’suwet’en title, and that is not correct,” said Geoff Plant, former B.C. attorney general, treaty minister and lawyer for the Crown in the original Delgamuukw trial. “It affirmed that title exists in law but said that the Wet’suwet’en and Gitxsan would essentially need to start all over with a new trial.”

“We’re not talking about proven Aboriginal title,” said Thomas Isaac, author of Aboriginal Law and former chief treaty negotiator for the B.C. government. “We’re talking about asserted title, and we’re talking about the rule of law. And the same courts that recognize Section 35 [Canadian Constitution] rights are the same courts that put limits on those rights. It scoped out what title meant, should it be proven. That decision didn’t prove title. It was sent back to trial.”

The Delgamuukw decision was an important legal precedent in Aboriginal rights and title law. The case was brought by members of the Wet’suwet’en and neighbouring Gitxsan First Nation.

It became one of the cornerstones for other rulings, notably the William decision, in which the Supreme Court of Canada affirmed the Tsilhqot’in Nation had established title to a portion of claimed territory through continuous and exclusive occupation.

Aboriginal title is a higher form of Aboriginal rights. First Nations may hold Aboriginal rights to use land and waters for activities such as hunting, fishing and trapping, but that does not mean they own it. It may be shared territory used by other First Nations.

Title is a form of ownership of specific land, although that ownership is communal.

In William, the Supreme Court of Canada confirmed Tsilhqot’in title based on the definitions established in the Delgamuukw case. It ruled that 1,750 square kilometres of Crown land southwest of Williams Lake now belongs to the Tsilhqot’in, not the Crown. That’s 2% of the Tsilhqot’in traditional territory originally claimed.

Unlike in the William case, the Supreme Court in Delgamuukw stopped short of declaring that the Wet’suwet’en or Gitxsan had proven title to any specific lands.

It affirmed that Aboriginal rights and title exist and were never extinguished. But to establish title, a second trial would be needed. As the William case demonstrated, proving title would require establishing continuous and exclusive occupation to certain lands. It would also need to address overlap issues with other First Nations in shared territory.

It’s not clear why the Wet’su-wet’en never pressed forward with a second trial. As of press time, a representative for the Office of the Wet’suwet’en could not be reached to comment.

Even when Aboriginal title to specific land is proven, it is “not absolute” and can be infringed, if there is a reasonable justification for that infringement, the Supreme Court ruled.

“The aboriginal rights recognized and affirmed by s. 35(1), including aboriginal title, are not absolute,” the Supreme Court notes in the Delgamuukw decision. “Those rights may be infringed, both by the federal … and provincial … governments. However, [Section 35] requires that those infringements satisfy the test of justification.”

The court provides examples where Aboriginal title might justifiably be infringed: “agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.”

The imbroglio over the Coastal GasLink pipeline speaks to the failure of the treaty process, which was supposed to resolve the Wet’suwet’en rights and title issue out of court. The Wet’suwet’en reached the agreement-in-principle stage but then abandoned the treaty table about two years ago.

It is worth noting that the BC Treaty Commission recognizes the hereditary chiefs, through the Office of the Wet’suwet’en – not elected band council chiefs – as having the authority to negotiate treaty with the provincial and federal governments.

In other words, the courts and governments recognize the authority of the hereditary chiefs as legitimate representatives of the Wet’suwet’en.

In the Wet’suwet’en’s case, however, there is division over the Coastal GasLink project. Some hereditary chiefs oppose it, while others support it, as do all the elected band councils.

Even where title is not proven – only asserted – provincial and federal governments have a duty to consult with and accommodate First Nations when approving projects that may infringe on their rights.

But the duty to consult and accommodate is not a duty to achieve unanimous consent. That would effectively give First Nations a veto, and courts have repeatedly stated that no such veto power exists.

“There is almost no case where Aboriginal title confers an absolute right,” Plant said. “Canadian law is always about balance. There are always cases where the greater social good will prevail over a private right, no matter how important or passionately held.”

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