Why Canadian Law Should be on the Side of the Wet’suwet’en in the Pipeline Confrontation

By Bruce McIvor

The standoff between Wet’suwet’en hereditary Chiefs and the RCMP in northern British Columbia is strewn with painful ironies. Below I outline two of them.

Irony #1: The Wet’suwet’en Chiefs’ actions are a manifestation of Aboriginal title


Under Canadian law, the exclusive occupation of Indigenous lands is both a requirement to prove Aboriginal title and a right that flows from Aboriginal title.

The Gidimt’en Checkpoint was an indicator of Wet’suwet’en Aboriginal title and an expression of that title.

The sight of heavily-armed RCMP officers scaling the checkpoint and forcibly subduing Indigenous people shakes and threatens constitutional legal principles painstakingly developed through a series of Supreme Court of Canada decisions including Calder (1973), Delgamuukw (1997), Marshall/Bernard (2005) and Tsilhqot’in (2014).

Is it any wonder that the international media sees these disturbing images and concludes that Canada, a country that preaches the rule of law to others all around the world, appears incapable of upholding its own laws in respect of Indigenous Peoples?


Irony #2:  The Hereditary Chiefs are the Ones who have fought for the Recognition of Wet’suwet’en Title


Much has been made of industry and government reliance on the Indian Act Chief & Councils. This is a blatant example of self-interested sophistry.

Anyone unsure who to speak to, Indian Act Chief & Councils or the Wet’suwet’en hereditary Chiefs, needed to do no more than take a quick look at the first page of the Supreme Court of Canada’s Delgamuukw decision.

The plaintiffs were the hereditary Chiefs of the Gitxsan and Wet’suwet’en Houses--not an Indian Act Chief & Council to be seen.

If there was still any confusion, a simple scan of the BC Court of Appeal decision in Tsilhqot’in should have cleared things up.

The Court held that the determination of who properly holds Aboriginal title is determined primarily from the view point of the Indigenous People making the claim—not the imposition of the Indian Act.

If there was possibly any remaining doubt the Court silenced it: “the organization of the Tsilhqot’in into bands as a result of the reserve allocation process and the Indian Act does not affect the identity of the Nation as the holder of rights.”


A Shameful Failure


Forget about wringing our hands over ‘reconciliation’—the fact that the Chiefs and their supporters found themselves facing heavily-armed RCMP officers is a testament to a complete and shameful failure of the rule of law.

January 7, 2019 was another black day in the long and ongoing history of Canadian colonialism (Oka, Ipperwash, Gustafsen Lake, Caledonia, Elsipogtog, etc.). Canada should hang its head in shame.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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