David Khan on the Wetsuweten Nation and Coastal Gas Link Dispute

David Khan on the Wet'suwt'en Nation - Coastal Gas Link dispute:

"I recently discussed this issue with Ryan Jespersen on his 630CHED daily morning radio show out of Edmonton. You can listen to it, here.

This brings me to Andrew Coyne's recent column. I really respect Mr. Coyne (a regular columnist and former editor of the National Post editorial pages, and a regular guest on CBC's The National's "At Issue" political panel), and I often agree with his columns.

But his most recent one, concerning the constitutional duty of the government to consult and accommodate First Nations, and the Wet’suwet’en Nation - Coastal GasLink dispute, doesn’t contribute constructively: https://www.theglobeandmail.com/opinion/article-duty-to-consult-fine-but-how-and-with-whom/?fbclid=IwAR01ZaqJQKdBP2-DAFFmUwsbhkGH9MWWTaBTnC002afBlR4Yo9oDNAMmxg0

The Supreme Court of Canada has been clear that Aboriginal title exists whereas in most of British Columbia—no Treaties exist.

The Court has been practically begging governments for decades to resolve this.

Its decisions have become more and more strident as they are not followed by governments. This culminated in its 2014 award of Aboriginal title of a vast area of British Columbia to the Tŝilhqot'in Nation: https://www.cbc.ca/news/politics/tsilhqot-in-first-nation-granted-b-c-title-claim-in-supreme-court-ruling-1.2688332?fbclid=IwAR3KnIEktLBpedGfAWoB8oTy0PvKLWtIbhdgPywb7r57lfNqbEhbj2xs64c

It’s made clear that Indigenous law/governance structures are legitimate.

It’s made clear that where Aboriginal title claims have not been resolved by litigation or negotiation (Treaties), the Constitutional s. 35 duty to consult (and accommodate)—a “sliding scale” depending on the circumstances—is closer to consent.

Again, because of decades (or 150+ years) of foot-dragging and obstruction in the courts by the federal & British Columbia governments (to put it generously), most of British Columbia remains “unceded territory” (not subject to agreements like Treaties to share the land) and subject to outstanding Aboriginal title claims.

Again, elected Band Councils (imposed—along with reserves—on First Nations by the federal government and Indian Act) do not have authority over Aboriginal title lands; traditional governance structures (such as the Wet’suwet’en Hereditary Chiefs) do (see the Delgamuukw case): https://en.wikipedia.org/wiki/Delgamuukw_v_British_Columbia?wprov=sfti1&fbclid=IwAR3c-1NyTQH5acqEs9LqbKJ5IZWR3rPIpKuT4z4G6QuFaSnpHXxTicXYYe4

Therefore, it’s clear that the federal government (who the Supreme Court of Canada in the Haida case in 2004 ruled has the duty to consult, which cannot be offloaded on proponents) must consult with Band Councils & First Nations traditional governments, and—most importantly—must negotiate agreements to get things built.

Title is held by the First Nations people themselves, communally, as represented by their governance structures and according to their laws and customs. It’s not up to us to impose that on them, and then only negotiate with those imposed governance structures (like Band Councils).

The Wet’suwet’en have had a central body (the Office of the Wet’suwet’en) to negotiate issues of Aboriginal title and potential projects on their lands since at least 2014, and it was the Hereditary Chiefs who brought the Delgamuukw case and were recognized by Supreme Court of Canada: https://www.theglobeandmail.com/canada/british-columbia/article-wetsuweten-hereditary-system-coastal-gaslink-pipeline-protests-bc/?fbclid=IwAR2z9Oaq3unkBwzac5qA7McJIXfHXLzmVuPxAWY5b0HD1nWkXerG1llvvG4

“Standing” (as it is known in the Courts) to legitimately bring litigation on behalf of a First Nation is itself a complex concept.

Here is the federal government's (not definitive) guidelines on this issue: “Litigation Guideline #15: A large & liberal approach should be taken to the question of who is the proper rights holder”: https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.html?fbclid=IwAR3ITlbNwydO1jX-FVTux8_tiBGMWm9EELh-mnTOCe8c8iUKu_iM5Bep3nQ

Here is a case I argued regarding standing (representing the Hwlitsum First Nation, who claim Aboriginal title over lands in the Lower Mainland & Gulf Islands of British Columbia). I disagree with the Court’s decision, but it illustrates the concepts and tests involved: https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc475/2017bcsc475.html?resultIndex=1&fbclid=IwAR0Z9FFgpLgPAfkSO4oDEY0q5qFqew-D6PTlKRKZdSm_5p_-JYJ3mfb1gPs

Here is a case summary from the McCarthy’s law firm on the decision. Again, I vociferously disagree with the British Columbia Supreme Court’s reasoning and decision (and the heavy-handed tactics of federal government lawyers in opposing), but the Courts are alive to the standing issue: https://www.mccarthy.ca/en/insights/blogs/canadian-class-actions-monitor/plaintiffs-lack-standing-bring-representative-action-claim-aboriginal-rights?fbclid=IwAR28Dg7GuFCxAX9qNfk6midOkMPjzKgIIxPuS6GgWVkDl46Mc-6Y6Vske9U

Regarding the "plebiscites" some Band Councils held regarding whether to support the Coastal GasLink project: it depends on what the question was, who got to vote and how, what the result was, etc.

Then, over what territory does the plebiscite apply to?

But—more importantly—plebiscite is a Western legal concept we’ve imposed on First Nations via the Indian Act. Does it accord with Wet’suwet’en law?

The Wet’suwet’en Nation and the Delgamuukw case are a case study in decades of failures by successive federal (and British Columbia) governments to conclude Treaties to govern Aboriginal title over traditional territories, or litigate in a timely, cost-effective and honest and honourable manner to reach a decision.


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