The proposed Coastal GasLink pipeline aims to transport natural gas from Dawson Creek to Kitimat, British Columbia. In January 2019, the Wet’suwet’en peoples faced forced removal from the pipeline's route, spotlighting the displacement of Indigenous law on two fronts. Firstly, traditional governance institutions were supplanted by imposed Indian Act governance. Secondly, a rights regime was enforced, excluding Indigenous tenures and jurisdiction until proven in court through an Aboriginal title analysis.
A pivotal aspect of the January conflict lies in the fact that Wet’suwet’en Indian Act governments entered agreements allowing the project to proceed, while leaders of traditional governance institutions did not. This presented a clear conflict between Canadian state law and Indigenous legal orders when the state relied on band government approval for project support. Media coverage framed this as a clash between Indian Act and “hereditary” forms of government, underscoring the need to comprehend these hereditary governance structures when exploring potential Indigenous responses to environmental issues.
A second noteworthy displacement relates to the interpretation of Wet’suwet’en rights. The Royal Canadian Mounted Police justified the removal of Wet’suwet’en peoples from the pipeline path by claiming they hadn't established rights in the area. This proves ironic for several reasons. Despite a decade-long legal battle in Canadian courts for the recognition of title in that territory, the Supreme Court of Canada (SCC) sent the matter back to trial on procedural grounds, despite indicating that the evidence likely satisfied a conception of title. The court’s decision in Delgamuukw seemed to be a political maneuver, urging governments to negotiate Aboriginal title claims genuinely. While acknowledging legitimate title holders, the court did not declare title, severely limiting protections under Canadian law.
Comparing this with the Tsilhqot’in situation provides clarity. The Tsilhqot’in received a declaration of Aboriginal title in 2014, and the SCC ruled that where title is established, Aboriginal consent is required for any development to proceed. In contrast, the situation of the Wet’suwet’en, who were forcibly removed from their territories, highlights a stark discrepancy amid discussions of Indigenous legal solutions to environmental challenges and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. When Canadian law recognizes a title interest, there may be room for Indigenous law to prevail. However, where Canadian law hasn’t acknowledged rights or title, it unilaterally prevails. Concerning the pipeline on Wet’suwet’en territory, Canadian law designates the lands as Crown lands, asserts the absence of relevant established rights, and wields the state's power to push contested projects through. Once again, the imposed hierarchy of legal systems becomes evident.
Please note that we are in no way affiliated with Kwakwaka’wakw artist and Mamalilikulla Chief Councillor John Powell (whose ancestral name is Winidi). We do take to heart his doctrine and agree fully with his statement: "Our ancestors … gave us the responsibility to steward this land — our seas and our skies and our connection to the supernatural — and to protect, defend, nourish and house all the creatures who come from all of those elements.”