By: Kate Gunn
PUBLISHED IN LAND BACK | (2021) 1:2 ROOTED
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Kate Gunn is a lawyer at First Peoples Law Corporation in Vancouver, BC. She represents Indigenous groups across Canada on environmental and constitutional law issues. She also holds an LLM from the University of British Columbia, where her research focused on the interpretation of treaties between Indigenous Peoples and the Crown.
In recent years, federal and provincial governments in Canada have made repeat commitments to a renewed relationship with Indigenous Peoples based on recognition and respect.[i] Courts have expressly recognized the continued existence of Indigenous laws and legal systems and are now actively grappling with questions about how Indigenous laws can be implemented as part of, or in parallel with, the common law.[ii]
However, 2020 was a year marked by forceful efforts on the part of Canadian governments and courts to suppress or ignore the authority of Indigenous law, including in response to Wet’suwet’en hereditary leaders’ opposition to the Coastal GasLink pipeline project and the ongoing conflict in Ontario known as 1492 Land Back Lane. These events highlight important, uncomfortable truths about the state of reconciliation in Canada, including governments’ and courts’ ongoing refusal to recognize Indigenous Peoples’ laws and jurisdiction when doing so conflicts with the Crown’s asserted authority over lands and resources.
Recognition in Canadian Law
Indigenous Peoples have always governed their lands and waters in accordance with their own legal systems despite the Crown’s longstanding efforts to suppress and undermine their existence. Today, Canadian courts recognize Indigenous laws predated and survived colonization,[iii] but have yet to provide a coherent explanation for the Crown’s assertion of sovereignty over Indigenous Peoples and their lands. This contradiction lies at the root of the tension between the Crown’s public commitments to reconciliation and its efforts to maintain the colonial status quo.
Despite this apparent conflict, Indigenous laws are recognized by the Canadian legal system in a variety of contexts. As the Supreme Court of Canada confirmed in Tsilhqot’in Nation, the existence and exercise of Indigenous law is an aspect of establishing Aboriginal title under section 35(1) of the Constitution Act 1982.[iv] Indigenous law is also a component of Aboriginal title itself.Aboriginal title confers not only ownership of the land, but the right to use, control, and manage the land based on the customs, laws, and traditions of the title-holding group, subject only to the Crown’s ability to infringe title based on the justification framework established in Sparrow.[v]
Over the past several years, courts have also increasingly recognized the authority of Indigenous laws in relation to governance and family matters. For example, when called upon to decide a dispute regarding a First Nation’s election process, the Federal Court acknowledged the judiciary’s long-standing tendency to deny and suppress Indigenous law.[vi] The Court went on to find that the First Nation’s customary leadership selection process was a form of Indigenous law, and that the Elections Appeal Board established under that process was an Indigenous decision-making body entitled to deference.[vii] Furthermore, in the family law context, the Ontario Court of Appeal recently considered whether a dispute should be resolved based on Haudenosaunee law, and described the recognition of separate spheres of Canadian and Indigenous jurisdiction as “a form of reconciliation.”[viii] These decisions suggest that while critical issues regarding the legal basis for the Crown’s assertion of sovereignty remain, the courts are nevertheless alive to the challenges presented by the interaction between Canadian and Indigenous legal systems.
Suppression of Indigenous Legal Orders
These tentative steps forward cannot erase Canada’s long history of suppressing the existence and exercise of Indigenous law.[ix] For decades, Canadian law expressly prohibited Indigenous Peoples from expressing their laws and traditions, including through legislation banning the potlatch, sun dance, and other cultural ceremonies. The suppression of Indigenous law was furthered by the Crown’s systematic efforts to dismantle Indigenous governance structures in favour of the Indian Act band council system. As illustrated by the discussion below, vestiges of this tradition continue to exist in the Canadian legal system.
The courts’ current approach to issuing injunctions is emblematic of the ongoing disregard for Indigenous legal authority when it relates to resource development. Since the entrenchment of protections for Aboriginal and treaty rights in the Constitution Act, 1982, Indigenous Peoples in Canada have used injunctions to protect their ancestral lands from exploitation.[x] Increasingly, however, courts are called upon to hear applications by industry proponents for injunctions to allow resource projects to proceed in the face of Indigenous opposition. As a result, the injunction has shifted from a legal tool used by Indigenous Peoples to protect their lands and rights to one which suppresses Indigenous opposition and denies the exercise of Indigenous law.
In a recent and highly publicized example, the British Columbia Supreme Court granted Coastal GasLink Ltd. an injunction restraining Wet’suwet’en hereditary leaders and supporters from blockading a portion of their territory to prevent the construction of the Coastal GasLink pipeline project.[xi] The Court dismissed the defendants’ position that they were acting in accordance with Wet’suwet’en law and concluded that Indigenous laws are only effective under Canadian common law if they are first recognized through treaties, court declarations or statutory provisions.[xii]
The Wet’suwet’en injunction decision is notably out of step with Supreme Court jurisprudence which affirms the prior and continued existence of Indigenous law, regardless of whether the law has been recognized by the state or courts. Nevertheless, the Crown and RCMP relied on the decision to forcibly remove the Wet’suwet’en from their lands to make way for the pipeline project. The decision underscores the fact that courts in Canada continue to disregard Indigenous Peoples’ laws and jurisdiction where lucrative resources are at stake. It also stands as a stark reminder that governments and courts remain willing to use the Canadian legal system to justify the erasure of Indigenous legal orders, even when doing so runs counter to established Canadian law.
The dual trends of increased recognition and ongoing suppression of Indigenous law is a reminder that critical questions remain in Canada about whose laws apply on Indigenous lands and the legitimacy of the Crown’s authority over Indigenous Peoples. Given the contradictory approach exhibited by the Crown and courts, it is unlikely that these issues will be resolved soon. Instead, courts will continue to be called upon to deal with the interplay between Canadian common law and Indigenous law, and Indigenous Peoples will continue to exercise their own inherent jurisdiction to decide how their ancestral lands will be used and protected. In the absence of a clear process for harmonizing jurisdiction between overlapping legal systems, conflicts such as the Coastal GasLink dispute will inevitably arise.
Despite this apparent impasse, there are clear reasons why the Crown and courts must find ways to move beyond the pattern of denial and repression of Indigenous law. These include the Crown’s obligations under the Constitution Act, 1982, the United Nations Declaration on the Rights of Indigenous Peoplesand the findings of the Truth and Reconciliation Commission. Perhaps most importantly, it is imperative that Canadian governments heed the growing call from Indigenous and non-Indigenous people alike to live up to their promises of reconciliation, even when doing so calls for decisions which may be unpopular or inconvenient. As the Wet’suwet’en conflict clearly demonstrates, the promise of reconciliation cannot be fulfilled until the Crown is willing to respect the authority of Indigenous laws.
[i] Thanks to the team at First Peoples Law for their support and assistance in preparing this paper. This paper draws on blog posts prepared by First Peoples Law, including Kate Gunn & Cody O’Neil, “Indigenous Law and Canadian Courts” (20 January 2021), online (blog): First Peoples Law <https://www.firstpeopleslaw.com/public-education/blog/indigenous-law-canadian-courts>; Kate Gunn, “Injunctions as a Tool of Colonialism” (20 July 2020), online (blog): First Peoples Law <https://www.firstpeopleslaw.com/public-education/blog/injunctions-as-a-tool-of-colonialism>; Bruce McIvor, “Why Canadian Law Should be on the Side of the Wet’suwet’en in the Pipeline Confrontation” (10 January 2019), online (blog): First Peoples Law <https://www.firstpeopleslaw.com/index/articles/381.php>.
[ii] In this paper, “Indigenous law” refers to the multiple legal systems developed and exercised by Indigenous Peoples which predate the arrival of Europeans and the assertion of Crown sovereignty.
[iii]R v Van der Peet,  2 SCR 507, 1996 CanLII 216 (SCC); Mitchell v MNR, 2001 SCC 33. In addition, the Supreme Court has recognized that throughout much of Canada, the Crown exercises decision-making authority over Indigenous lands on a de facto basis. See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 32.
[iv] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in Nation]at para 35; Delgamuukw v British Columbia,  3 SCR 1010, 1997 CanLII 302 (SCC) at paras 114, 133-4.
[v] See Ibid at paras 73—76; R v Sparrow,  1 SCR 1075, [Sparrow].
[vi] See Pastion v Dene Tha’ First Nation,  4 FCR 467 at para 9, [Pastion].
[vii] See Ibid at para 20; Whalen v Fort McMurray No 468 First Nation,  4 FCR 217; Alexander v Roseau River Anishinabe First Nation Custom Council, 2019 FC 124 (CanLII).
(for other examples of the Federal Court’s treatment of Indigenous law in respect to election processes).
[viii] See Beaver v Hill, 2018 ONCA 816at para 63.
[ix] Sparrow, supra note 5 at paras 1102-1103.
[x] See, for example, MacMillan Bloedel v Mullin (1985), 61 BCLR 145 (BCCA).
[xi] Coastal GasLink Pipeline Ltd v Huson, 2019 BCSC 2264. In 2018, the BC Supreme Court issued an interlocutory injunction against Wet’suwet’en leaders and supporters in respect of the same issue. See Coastal GasLink Pipeline Ltd v Huson, 2018 BCSC 2343.
[xii] Ibid at para 127.