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Power is your ability to walk away.1 This was the power the Unist’ot’en Clan believed
they wielded as they prepared to square off with Coastal Gaslink, a large oil company with
designs to build a pipeline across their ancestral lands. Believing that the duty of the government
to consult with tribes meant that nothing could happen until they chose to consult with the
government or the oil company, the Unist’ot’en Clan had been withholding from consultation
The wisdom of this belief is currently being put through the crucible of the Canadian
legal system. This January, Coastal Gaslink named Freda Huson, wife of the Unist’ot’en
hereditary chief, and numerous others, in a complaint calling for an injunction against the
Unist’ot’en Clan’s blockade stopping construction of the pipeline. Soon thereafter, members of
the Royal Canadian Mounted Police (RCMP) came in fatigues armed with military-style rifles
and arrested fourteen people, including a clan elder.2 Coastal Gaslink intends to construct what
has been called a “man camp” on Unist’ot’en lands.3 Man camps near indigenous people’s
territory have been associated with crime, murder, and sex trafficking of indigenous people.4
This event has dramatic implications for the First Nations of Canada. The First Nations of
Canada, like the Native American tribes of the United States, suffered greatly under colonialism.
They suffered the cession of rights to their ancestral lands, violence, and state sanctioned
assimilation. The use of heavily armed RCMP officers to enforce an injunction raises broad
1
This was the mantra of my labor economics Professor, Teresa Ghilarducci.
2
Lisa J. Ellwood, 14 arrested as RCMP and military breach Unist'ot'en Camp checkpoint IndianCountryToday.com (2019),
https://newsmaven.io/indiancountrytoday/news/14-arrested-as-rcmp-and-military-breach-unist-ot-en-camp-checkpoint-
qRn5_8w6jkOtbHMYRh_AJA/ (last visited May 6, 2019).
3
Unist'ot'en Camp, Unist'ot'en Demands Stop-Work Order for Coastal Gaslink Pipeline Earth First! Newswire (2019),
https://earthfirstjournal.org/newswire/2019/01/28/unistoten-demands-stop-work-order-for-coastal-gaslink-pipeline/ (last
visited May 6, 2019).
4
Amy Goodman, Body of Olivia Lone Bear Found in North Dakota as Native Women Face Crisis Truthout (2018),
https://truthout.org/video/body-of-olivia-lone-bear-found-in-north-dakota-as-native-women-face-crisis/ (last visited May 6,
2019)
1
questions about the sincerity of the Canadian government’s stance of reconciliation with the First
Nations and specific questions about the consultation rights of First Nations.
The colonial violence in BC may have consequences for the First Nations whose interests
are affected by the Columbia River Treaty (CRT). When the CRT was first signed in 1964, the
First Nations did not have a constitutionally enshrined right of consultation nor consent. Today,
Canada and the United States are reconsidering the CRT as its early termination notice date
approaches. Changes to the CRT will invariably impact First Nations in the Columbia Basin and
The Unist’ot’en Clan’s refusal to consult will likely have one of two consequences for
Columbia Basin First Nations. Either the duty to consult will be found to act like a veto as the
Unist’ot’en Clan believes or, and most likely, the court will find that Coastal Gaslink did their
due diligence. The court will open the door to the erosion of consultation rights based on
contrived economic exigencies. Both interpretations would upset the current caselaw which
There are strong arguments for both outcomes. Currently, caselaw does not explicitly
hold that the duty to consult gives the first nations a veto over government intrusions on their
lands. However, the construction of the pipeline undermines the permitted uses of Canadian
Aboriginal land title and Aboriginal title is enshrined in the constitution. Next, the use and
continued presence of militarized police who act to restrict aboriginal people’s access to their
own lands clearly undermines the Canadian government’s pledges of reconciliation. Third,
granting the First Nations a veto would empower them and give substance to consultation.
Without the veto, consultation is merely procedural. On the other hand, the claims of Coastal
Gaslink are not without merit. As noted in the Court’s opinion granting the interim injunction,
2
Coastal Gaslink would have incurred huge economic burdens if pre-construction work was not
allowed to start without delay. Additionally, should the court not allow a permanent injunction
Coastal Gaslink will have spent vast sums of money on work already done by the time the final
court ruling is made and will be harmed by the other finances they have prepared for finishing
the project. The Coastal Gaslink Pipeline is a boulder cast down a hill that cannot be stopped
except at considerable cost. Furthermore, there would be large ramifications if the First Nations
were given a veto. A small clan, like the Unist’ot’en, could unilaterally stop projects of national
economic importance.
For the First Nations impacted by the CRT, they will face two outcomes: 1. If the
consultation or consent rights are determined to be a veto, then any one of them may refuse to
consult or deny consent and upset renegotiations. 2. If the court affirms the interim injunction
based on the economic harms to plaintiffs, then the vast resources and infrastructure already set
in motion by the first CRT will likely allow for the legal negation of any protests by affected
First Nations. The government and any contractors will recognize this going into consultation,
This paper will analyze these possible legal outcomes in the following manner: first, the
factual background will be considered, followed by the legal back ground. Then it will consider
the various legal arguments the Unist’ot’en defendants might make and the various shortcomings
of these defenses. Finally, this paper will discuss the various consequences of these defenses for
Factual Background
3
Historical background of the Columbia River Treaty
Like the United States, Canada previously had thriving indigenous cultures who used and
claimed the land going back hundreds, if not thousands, of years. Also, similar to the United
States, Canada has a past of colonialism and expropriation of indigenous lands. Canada had
various settler, homesteading, reservation, and assimilationist policies that decimated the
indigenous people.
When the CRT was signed in 1964, the many first nations did not have the types of legal
protections that the first nations have today. As a result of dam construction the first nations lost
access to salmon and sturgeon.5 Furthermore, some of their former lands, including burial sites,
are now seasonally inundated by the dams. In fact, it was not until April 18, 2019 that one of the
First Nations impacted by that era’s dam building finally got compensation for their homes being
burnt and flooded6. Due to the flooding they still find the bones of their ancestors in the lake7.
The CRT does not automatically terminate. Instead, starting in 2014, either country, the United
States or Canada, may give ten years notice. Both countries are actively looking into
renegotiating the CRT. As will be discussed in the legal background section in greater detail,
since the CRT was signed the First Nations have gained considerable legal rights, namely their
owed duty of consultation and new precedents regarding aboriginal title. Taking stock of the
harms of the dams in the past and looking to anticipating the impacts of future dam regulation
5
Historical, Balance of Power (2007), http://www.virtualmuseum.ca/sgc-cms/expositions-
exhibitions/hydro/en/stories/historical.php (last visited May 6, 2019)
6
Betsy Trumpener, First Nation wins redress for flooded village, forced relocation to make way for industy in 1952 | CBC
News CBCnews (2019), https://www.cbc.ca/news/canada/british-columbia/cheslatta-compensated-for-1952-alcan-relocation-
1.5102933 (last visited May 5, 2019).
7
Id.
4
Facts of Coastal GasLink Pipeline Ltd. v. Huson (Et Al.)z
Coastal Gaslink is a sub-entity of Transcanada, a large oil company with assets across
North America8. The Coastal Gaslink project is a 670 Kilometer pipeline to move fossil fuels
extracted from the interior of Canada to the coast of British Columbia for export to Asian
markets9. The Pipeline is a large economic undertaking projected to cost $6.2 Billion10. The
pipeline is planned to end at the $40 billion LNG terminal in Kitimat11. The Kitimat Terminal is
backed by corporate giants: Royal Dutch Shell, Mitsubishi Corp., The Malaysian-owned
In 2010, the defendants Mrs. Huson, the Unist’ot’en Clan, and others, set up a blockade
across the bridge on the Morice River Forest Service Road13. This bridge is the only way to
access the 8th section of the pipeline route14. The blockade has variably consisted of movable
gates, trucks parked to impede traffic, and people. For roughly eight years the defendants refused
access to the RCMP as well as to Coastal Gaslink employees15. The Unist’ot’en asserted that the
offered consultation was not meaningful, rejected attempts to consult, and refused to give
consent to the Coastal Gaslink Project16. They have further alleged that they do not consent
8
TransCanada, Coastal GasLink Pipeline Project, https://www.coastalgaslink.com/about/transcanada/ (last visited May 5,
2019).
9
About Coastal GasLink, Coastal GasLink Pipeline Project, https://www.coastalgaslink.com/about/the-project/ (last visited May
5, 2019)
10
Economic Benefits, , https://www.coastalgaslink.com/benefits/economic-benefits/ (last visited May 5, 2019)
11
Rhianna Schmunk, With 'unprecedented' investment, $40B LNG project in northern B.C. to go ahead | CBC
News CBCnews (2018), https://www.cbc.ca/news/canada/british-columbia/kitimat-lng-canada-1.4845831 (last visited May 5,
2019)
12
Id.
13
Teaching Unist'ot'en, NYC Stands with Standing Rock (2019), https://nycstandswithstandingrock.wordpress.com/teaching-
unistoten/ (last visited May 5, 2019)
14
Coastal GasLink Pipeline Ltd. v. Huson, 2018 BCSC 2343 at para 5.
15
Id. at para 7.
16
BC and Canada Ignore Wet’suwet’en Title Holders To Push Pipeline Agenda, (2018),
http://www.wetsuweten.com/files/October_1,_2018_Press_Release.pdf (last visited May 5, 2019)
5
because the pipeline project jeopardizes the environment through climate change and jeopardizes
the salmon and landscape that the people rely upon for sustenance17.
Coastal Gaslink began receiving permits for the pipeline project on June 20, 201318. Over
the coming years, Coastal Gaslink continued to commit resources as it sought more permits19.
Despite the lack of consultation, Coastal Gaslink received the bulk of necessary permits in April
and June of 201820. On October 2, 2018 the final investment decision for the Kitimat LNG export
terminal was approved21. Coastal Gaslink filed its complaint for a preliminary injunction against
the Unist’ot’en defendants the following month on November 28, 201822. The plaintiff received
its most recent project-related permit the same day the court ordered injunction was enforced by
the RCMP January 7, 201923. As a result of these mounting commitments, the plaintiff alleged
they would be harmed if the defendants’ blockade were not enjoined because “any delays to the
construction schedule could jeopardize the entire project”24. These harms were estimated to be
17
Michael T, "Force is Not Consent" - Gate opens at Unist'ot'en Camp YouTube (2019), https://www.youtube.com/watch?
v=VqIvLVU_rlQ&t=80s (last visited May 5, 2019)
18
Allison Mackay, Approval for Short Term Use of Water BC Oil & Gas Commission (2013),
https://www.bcogc.ca/node/13877/download (last visited May 5, 2019).
19
Coastal GasLink, BC Oil and Gas Commission (2019), https://www.bcogc.ca/public-zone/major-projects-centre/coastal-gaslink
(last visited May 5, 2019).
20
James O'Hanley, Permit Extension for Application Determination No. 100082293, OGC Legacy No. 9707566 (2018),
https://www.bcogc.ca/node/13887/download (last visited May 5, 2019).
See also: https://www.bcogc.ca/node/13889/download - April 16, 2018
https://www.bcogc.ca/node/13890/download - April 16, 2018
https://www.bcogc.ca/node/12644/download - April 16, 2018
https://www.bcogc.ca/node/12645/download - June 6, 2018
https://www.bcogc.ca/node/12646/download - June 6, 2018
21
Robin Rowland & Chad Hipolito, LNG Canada project in Kitimat given green light to build by shareholders Vancouver
Sun (2018), https://vancouversun.com/news/politics/lng-canada-green-light (last visited May 6, 2019).
22
Coastal GasLink Pipeline Ltd. v. Huson, 2018 BCSC 2343.
23
Jacqueline Bourke, RE: Application Determination Number 100106729 (2019), https://www.bcogc.ca/node/15310/download
(last visited May 5, 2019).
24
Coastal GasLink Pipeline Ltd. v. Huson, 2018 BCSC 2343 at para 31.
25
Id. at para 31.
6
In the December 14, 2018 judgement, the Supreme Court of British Columbia held that
the balance of conveniences weighed heavily in favor of the plaintiffs26. The court deemed the
harms to the defendants as “relatively minimal.”27 The Court allowed the plaintiffs to proceed
with pre-construction and construction work, as well as the construction of “Camp 9A.” The
The judgement has fueled resentments. The Unist’ot’en Clan claims that the industrial
work camp, Camp 9A, is a “man camp” and point to the spike in sexual assaults against
indigenous women at Fort James in the year following the start of an industrial project.28 They
further assert that man camps “create the social conditions for an increase of violence against
Indigenous women and children”29 and “Colonialism and industry have deliberately targeted
Indigenous women and two spirits since contact, and ‘man camps’ are yet another way that they
will be violated.” These allegations are not without merit. There is considerable evidence from
26
Id. at para 32.
27
Id. at para 33.
28
Unist'ot'en Camp, NO CONSENT TO VIOLENCE AGAINST... - Unist'ot'en Camp Facebook(2019),
https://www.facebook.com/unistoten/posts/2459657034108527 (last visited May 6, 2019).
29
Unist'ot'en Do Not Consent To Man Camps Increasing Violence Against Our Women, , https://unistoten.camp/mancamps/
(last visited May 6, 2019).
30
Alleen Brown, A New Film Examines Sexual Violence as a Feature of the Bakken Oil BoomThe Intercept (2018),
https://theintercept.com/2018/07/01/nuuca-bakken-oil-boom-sexual-violence/ (last visited May 6, 2019).
31
Kathryn Baum, Northern resource development tied to violence against indigenous women: report The Globe and
Mail (2017), https://www.theglobeandmail.com/news/national/northern-resource-development-boosts-violence-against-
indigenous-women-report/article32660031/ (last visited May 6, 2019).
32
Kevin Maimann, Link between rural work camps and violence against women is real, researchers say thestar.com (2018),
https://www.thestar.com/edmonton/2018/12/04/link-between-rural-work-camps-and-violence-against-women-is-real-
researchers-say.html?fbclid=IwAR0Rk2OQKCaQ9VLYUcTvyMbcrf6qlnW3YhtJsUE4zf9e5oMveBIhSIrmdok (last visited May 6,
2019).
33
Brandi Morin, Pipeline 'man camps' loom over B.C.'s Highway of Tears National Observer(2018),
https://www.nationalobserver.com/2017/09/21/news/pipeline-man-camps-loom-over-bcs-highway-tears (last visited May 6,
2019).
34
Dheeshana Jayasundara et al., The Impact of Resource Development on Interpersonal Violence: Survivor Risk Factors and
Experiences Ingenta (2019), https://www.ingentaconnect.com/contentone/icsd/sdi/2019/00000041/00000001/art00004 (last
visited May 6, 2019).
7
Subsequent enforcement of the interim injunction has intensified resentment. On January
7, 2019, 200 RCMP enforced the interim injunction dressed in military fatigues and armed with
military-style weapons. Fourteen supporters of the Clan were arrested35. Pursuant to their legal
claims each time the RCMP and Coastal Gaslink employees are allowed on Unist’ot’en land it is
made clear that it is done “under duress for fear of RCMP action.”36 Rallies in support of the
Unist’ot’en camp were held in thirty 30 cities.37 The enforcement of the injunction has also
impeded on the Clan’s use of their traditional traplines due to Coast Gaslink bulldozers.383940
Legal background
The Unist’ot’en principally have three legal claims. First is a claim grounded in the
Canadian constitution in which they allege their consultation rights were not upheld. Second, the
claim that they have aboriginal title to their lands. The third comes from the United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP.) The legal background of these
Consultation claim.
In pertinent part, Section 35 of the Constitution Act of 1982 states “(1) The existing
aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and
35
Terri Theodore, RCMP arrest 14 protesters in northern B.C. over anti-LNG pipeline protestNational Post (2019),
https://nationalpost.com/news/canada/newsalert-rcmp-arrest-14-people-taking-part-in-anti-lng-pipeline-protest (last visited
May 6, 2019).
36
Human Rights Campaign, KAVANAUGH REFUSES TO ANSWER QUESTIONS ON OBERGEFELL YOUTUBE(2018),
https://www.youtube.com/watch?v=PjbJci-sqD4 (last visited May 3, 2019)
37
Travis Lupick, Vancouver among 30 cities with rallies planned in support of Unist'ot'en Camp and Wet'suwet'en people The
Georgia Straight (2019), https://www.straight.com/news/1184711/vancouver-among-30-cities-rallies-planned-support-
unistoten-camp-and-wetsuweten-people (last visited May 6, 2019)
38
Bill Fee, EAO calls out Coastal GasLink for non-compliance south of Houston CFNR Network (2019),
https://www.cfnrfm.ca/2019/03/01/eao-cites-coastal-gaslink-for-non-compliance-south-of-houston/ (last visited May 6, 2019).
39
Coastal GasLink Ordered to Cease Work on Unist'ot'en Trapline Due to Non-Compliance With Permits, Unist'ot'en,
https://unistoten.camp/coastal-gaslink-ordered-to-cease-work-on-unistoten-trapline-due-to-non-compliance-with-permits/
(last visited May 6, 2019).
40
Broken Promises: CGL, RCMP Block Unist'ot'en Matriarch from Accessing Land, Violate Wildlife Act, Unist'ot'en,
https://unistoten.camp/broken-promises-cgl-rcmp-block-unistoten-matriarch-from-accessing-land-violate-wildlife-act/ (last
visited May 6, 2019).
8
affirmed.” This is the basis for subsequent consultation duty case law. The consultation duty is a
prominent case establishing what triggers the Crown’s duty to consult with the First Nations.
Notably, it states that the duty to consult arises when “the Crown has knowledge, real or
constructive, of the potential existence of the Aboriginal right or title and contemplates conduct
that might adversely affect it”42 This establishes three elements the CRT Nations will have to
show: 1. The Canadian government has knowledge. 2. That the First Nation has a right or title. 3.
That government action will adversely affect that right. Paragraph 48 of Haida Nation v British
Columbia raises a considerable barrier for First Nations that would seek to use the consultation
“This process does not give Aboriginal groups a veto over what can be done with land
pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is
appropriate only in cases of established rights, and then by no means in every case.
Rather, what is required is a process of balancing interests, of give and take.”
Finally, the theme of reconciliation is ubiquitous to the Haida Nation ruling. The words reconcile
and permutations thereof appear twenty-eight times in the opinion. The Court states “The
controlling question in all situations is what is required to maintain the honour of the Crown and
to effect reconciliation between the Crown and the Aboriginal peoples with respect to the
interests at stake.”43 This shows that the principle underlying consultation is not the meeting of
tests or procedure but actual reconciliation. Furthermore, the theme of reconciliation is present in
41
Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 SCR 103 at para 92.
42
Id. at para 35. (Refers to Haida not Beckman.)
43
Id. at para 45.
9
Some older case law is less friendly to the defendant’s case. “Once the District Manager
has set up an adequate opportunity to consult, the first nation is required to co-operate fully with
that process and to offer the relevant information to aid in determining the exact nature of the
right in question. The first nation must take advantage of this opportunity as it arises.”44 This
older opinion shows that participation in consultation is not optional. However, the case also
acknowledges that the First Nation’s treaty rights now have constitutional status making them
the supreme law of that land.45 The reasoning wielded in this case is repeated in a post Haida
case Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388,
2005 SCC 69. In this case the government was planning to build a road through Mikisew Cree
lands and did not adequately consult. What is important analytically, is that the Mikisew Cree
First Nation signed on to Treaty 8. The treaty provides that in addition to granting the right of
the First Nation to hunt, it also grants Canada the right to “take up” land.46 This means that both
the rights of the First Nation and Canada are given constitutional protection.
However, many of the First Nations of British Columbia never signed treaties. Therefore,
they are not in the position of having both their treaty rights and the treaty rights of Canada being
equally protected by the Constitution. Canada does not have the enshrined right to “take up” the
First Nations of British Columbia. Differentiating between rights embodied in treaties and rights
established through common law is important. Where consultation rights are not established by
treaty, First Nations still have recourse to common law consultation rights. Beckman v. Little
44
Halfway River First Nation v. British Columbia (Minister of Forests) [1999] 4 CNLR, (BCCA 470) at para 182.
45
Id. at para 135.
46
Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69 at para 32.
10
There are further consultation duties, relevant to the Unist’ot’en, embodied in the
caselaw. The Crown may not act unilaterally. The Court in Mikisew Cree First Nation v Canada
noted,
“There is in the Minister’s argument a strong advocacy of unilateral Crown action (a sort
of “this is surrendered land and we can do with it what we like” approach) which not only
ignores the mutual promises of the treaty, both written and oral, but also is the antithesis
of reconciliation and mutual respect.”47
Consultation must be meaningful. In that same case the court also noted “The contemplated
process is not simply one of giving the Mikisew an opportunity to blow off steam before the
Aboriginal Title
Establishing aboriginal title is a potent tool for First Nations. Like the duty to consult, the
recent case law for aboriginal title is undergirded by the Section 35 of the Constitution Act of
1982. Also like the duty to consult, this is a rapidly developing doctrine.
The doctrine took a large leap forward with the case of Tsilhqot’in Nation v. British
Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256. This case summarizes and builds off of previous
cases regarding aboriginal title. This case has powerful language that is a strong asset for first
“The right to control the land conferred by Aboriginal title means that governments and
others seeking to use the land must obtain the consent of the Aboriginal title holders. If
the Aboriginal group does not consent to the use, the government’s only recourse is to
establish that the proposed incursion on the land is justified under s. 35 of
the Constitution Act, 1982 .”49
This section of the Court’s opinion establishes the prominence of the title holder’s consent. How
easily that consent can be overridden depends on how strong of a justification is required by the
47
Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 SCR 388 at para 49.
48
Id. at para 54.
49
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256 at para 76.
11
government. The Court reiterated the test from R. v. Sparrow, [1990] 1 S.C.R. 1075.
Summarizing it:
“To justify overriding the Aboriginal title-holding group’s wishes on the basis of the
broader public good, the government must show: (1) that it discharged its procedural duty
to consult and accommodate; (2) that its actions were backed by a compelling and
substantial objective; and (3) that the governmental action is consistent with the Crown’s
fiduciary obligation to the group: Sparrow.”50
The most important of these three elements is the third. Fiduciary obligations are often ill
defined. However, the case speaks to an aspects of the Crown’s fiduciary duty:
“the Crown’s fiduciary duty means that the government must act in a way that respects
the fact that Aboriginal title is a group interest that inheres in present and future
generations… This means that incursions on Aboriginal title cannot be justified if they
would substantially deprive future generations of the benefit of the land.”51
Cumulatively, this case stands for the proposition that the government or others must get the
consent of aboriginal title holders. Where they cannot get consent only the government may
override that consent where the action is consistent with the Crown’s fiduciary duty not to
The next important case regarding aboriginal title is Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010. In this Supreme Court case the Wet’suwet’en First Nation’s kungax song
or dance as well as their oral histories were accepted as evidence to establish their aboriginal title
to their Yintah or traditional territory.52 The late hereditary chief, Knedebeas, is listed in the
Schedule of appellants.53 This case is also important because it specifically vests the power to
50
Id. at para 77.
51
Id. at para 86
52
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para 13.
53
Id. at para 209.
12
extinguish aboriginal title in the federal government, not the provincial government.54 Provinces
may not extinguish aboriginal title either directly nor by laws of general application.55
UNDRIP
The United Nations Declaration on the Rights of Indigenous Peoples defines the
individual and collective rights of indigenous people. The rights outlined in the declaration are a
powerful tool for indigenous people legally, if not rhetorically. In relevant part to the First
“States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.”56
On its face this declaration establishes the right of Indigenous people to withhold consent
However, Canada’s stance toward UNDRIP has been shaky. In 2007 while 143 countries
voted in favor of the declaration, Canada was one of four countries that voted against it. In 2016,
Canada’s Indigenous Affairs Minister Carolyn Bennett declared to the UN “"We are now a full
supporter of the declaration, without qualification,57" She added “"By adopting and
implementing the declaration, we are excited that we are breathing life into Section 35 and
recognizing it as a full box of rights for Indigenous Peoples in Canada."58 The adoption of
UNDRIP was not without further hiccups. Months later, the Attorney General of Canada, Jody
54
Id. at Schedule 1 following para 176
55
Id. at para 180
56
United Nations Declaration on the Rights of Indigenous Peoples, (2007),
https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pd (last
visited May 6, 2019) at page 23
57
Tim Fontaine, Canada now full supporter of UN Indigenous rights declaration | CBC NewsCBC news (2016),
https://www.cbc.ca/news/aboriginal/canada-adopting-implementing-un-rights-declaration-1.3575272 (last visited May 6,
2019).
58
Id.
13
Wilson-Raybould, commented in a speech before the Assembly of First Nations “simplistic
approaches, such as adopting the UNDRIP as being Canadian law are unworkable…”59 She
believes that the articles of UNDRIP are inconsistent with the Indian Act. Bill 262, which would
“require(d) the Government of Canada to take all measures necessary to ensure that the laws of
Canada are in harmony with [UNDRIP]” is lingering in parliament on the cusp of passing.60
There is some speculation that Bill 262 would not allow for the immediate adoption of UNDRIP,
but would result in a gradual harmonization. Adding more momentum for the adoption of
The just-out-of-reach stance of the government toward UNDRIP places the Court in an
unusual situation. Continuing the progress of the evolving case law to include tribal consent
seems to be the logical next step to fully embodying the essence of Section 35 of the Constitution
Act of 1982. However, the failure of the legislatures to fully adopt UNDRIP would put the court
in a politically presumptive situation either presuming the decision of the legislature ( a clear
justiciability violation in the United States, as it would dishonor the other branches of
government) or it would be the equivalent of the Court adopting an international treaty that the
14
2. Reconciliation is the primary concern of consultation case law, the subsequent actions
taken by the plaintiffs and RCMP were inherent to and corollary actions associated with
denying access and therefore reconciliation is not possible with the constant and implicit
threat of violence;
3. The result of the consultation was a forgone conclusion as evidenced by the plaintiff’s
pursuit of permits and the timing of the lawsuit;
4. The province cannot extinguish aboriginal title, the granting of permits by the province
for sections 7 and 8 of the pipeline are contrary to law;
5. And the Unist’ot’en never consented, therefore government action and the actions of the
plaintiff are contrary to the terms of UNDRIP.
Each other these arguments will be discussed below.
Aboriginal title
The Wet’suwet’en First Nation were never defeated in war. They never surrendered their
lands to Canada. They never signed a treaty with Canada. Therefore, Canada does not have a
constitutionally protected coequal treaty right to “take up” their lands. The Wet’suwet’en First
Nation and Unist’ot’en Clan’s aboriginal title is acknowledged directly by name by the Supreme
Court of Canada. This means that the defendants’ claims to aboriginal title are constitutionally
Appurtenant to this constitutional protection is the common law right to deny consent.
The Hereditary chiefs of the Wet’suwet’en First Nation had denied consent to plaintiffs.
Defendant, as spokeswoman for the Unist’ot’en Clan, has denied consent to plaintiffs. Denial of
consent can only be overridden through consultation and followed by an affirmative showing by
the government that their action is consistent with the Crown’s fiduciary duty.
The government has not yet made such an affirmative showing. Further the government’s
claim can not meet this bar in this instance. Governments incursion on the Clan’s aboriginal title
would substantially deprive future generations of the benefits of the land. This incursion, in
particular, would facilitate the emission of fossil fuels and thereby contribute to climate change.
Climate change is already changing the ranges of plant and animal species. Therefore, the
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intrusion would deprive future generations of the sustenance, water, and medicine upon which
the current generation relies. Alternatively, the land taken up by the pipeline infrastructure would
no longer be under aboriginal control and consequently deprive future generations of the benefit
Reconciliation
Reconciliation is the primary goal of Section 35 of the Constitution Act of 1982. The
duty to consult is derived from this imperative. Previous government actions were invalidated
because they undermined reconciliation. Reconciliation is, foundationally, a social and political
progress, not wholly legal. Therefore, considerations that might normally be considered political
should be contemplated. The plaintiffs knowingly creating an environment that will likely
increase the incidence of violence against indigenous women when they build “Camp 9A”
undermines reconciliation. The implied and tacit threat of state violence to enforce the injunction
undermines reconciliation. The subsequent use of state violence to arrest indigenous people on
Anyone who has been the victim of domestic violence or had a parent with a history of
violence knows that it does not matter what tone of voice they use or what nice procedures they
follow. What matters is what happens when you say “No.” Reconciliation is not possible, when
the response to “No” is armed paramilitaries, the destruction of indigenous lands, and an
between the indigenous and non-indigenous peoples of Canada, then the means should be
16
tailored to the end. Where the means are routinely found lacking and further entrench
resentments, then new means should be sought. In other words, consultation is not an end in
itself. Consultation arose as a common law duty as a means to promote reconciliation. The
defendants may find traction advocating that prior, free, and informed consent is a better means
to accomplishing reconciliation. Furthermore, prior, free, and informed consent would clear up
Meaningless Consultation
Consultation with the First Nations must be meaningful. It cannot be a smokescreen for
unilateral action by the government or the plaintiff. Due to the plaintiff’s behavior, the
defendants reasonably believed that any acquiescence to consultation with the plaintiff would
have been used to disempower them and check another box on the plaintiff’s to-do list to force
accommodations, or contracts might have been made for the Unist’ot’en might be construed as
consent, thereby placing the defendant’s in an unwinnable bind. That is denying consent entails
refusing to consult which means the defendants have breached their side of the consultation duty.
However, if the defendants were to consult that might be constructive waiver of their consent.
Furthermore, the plaintiff’s behavior indicates a continued pursuit of the necessary permits to
build their project regardless of whether they had consulted with the defendant. As more
resources are committed to a large project by a firm or government, the ability of that entity to
change course inversely diminishes. The growing commitment of resources by the plaintiff
This understanding is reinforced by the timing of the plaintiff’s lawsuit. The plaintiff did
not file suit back in 2012 when they first allege knowledge of the defendant’s blockade and
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refusal to consult. Filing at that time when the defendant was required to cooperate fully would
have been the appropriate time. Instead, the plaintiff waited. The plaintiff waited until they had
every resource lined up. They waited until the Kitimat LNG terminal was approved by investors.
Instead of filing suit when they would not be irreparably harmed, they waited until all their
resources were dedicated and set in motion with investor-sensitive deadlines. They have sped up
Provincial governments may not extinguish aboriginal title. The Coastal Gaslink pipeline cannot
rely solely upon permits issued by the government of British Columbia in order to impose upon
the aboriginal title of the Unist’ot’en Clan. The permits cannot act to directly extinguish title
since the power to do so resides wholly in federal jurisdiction. Nor can the permits by function of
general applicability do so. “a law of general application cannot, by definition, meet the standard
which has been set by this Court for the extinguishment of aboriginal rights without being ultra
Therefore, the defendants should request that the permits relied upon by plaintiffs for
sections 7 and 8 of the Coastal Gaslink Pipeline be vacated or otherwise deemed improper. In the
alternative, such permits are not sufficient to allow the plaintiff to impose upon the aboriginal
Furthermore, the Plaintiffs failed to get approval from the National Energy Board. While
the Coastal Gaslink Project will be built entirely in British Columbia, the pipeline connects to a
larger system of pipelines that is federally regulated.63 Therefore, the construction should be
62
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para 180
63
Judith Lavoie, Coastal GasLink pipeline permitted through illegal process, lawsuit contends (2019),
https://thenarwhal.ca/coastal-gaslink-pipeline-permitted-through-illegal-process-lawsuit-contends/ (last visited May 6, 2019).
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postponed until the National Energy Board finishes considering the ongoing jurisdictional
challenge.
UNDRIP
Given both the Federal Government’s official adoption and support for UNDRIP as well
as the BC provincial government support for UNDRIP, the Court should uphold the articles of
UNDRIP. Specifically, the defendants should ask the court to interpret the imperative embodied
in Section 35 of the Constitution Act of 1982 to be consistent with the free and informed consent
This decision would be a concrete and deeply meaningful step toward reconciliation
between the First Nation’s of Canada and the non-indigenous population. Furthermore, it would
simplify and clarify many of the complexities that currently exist with the fluid post Haida
consultation requirements. Finally, the consultation duty doctrine has evolved and expanded
considerably over the last twenty years. Applying the principles of UNDRIP in this case is the
defendant mostly rely upon stretches of the current case law. The law isn’t quite where
defendant’s need it to be. Second, the plaintiffs have a large amount of capital behind their
project. Since the interim injunction was granted and construction was started plaintiffs will be
Regarding the potential claim of aboriginal title, the defendants falter because they
refused to engage in consultation as they are obliged to do. Further it is not clear that climate
change is a valid counter to the Crown’s fiduciary duty; it is an untested claim. It is likely true
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that the putative economic benefits of the Coastal Gaslink project are a sufficient government
The First Nation’s potential claim regarding reconciliation could be construed as a matter
injunctions. The precedent that it would set might allow the First Nations to decry any adverse
Were the defendants to allege that the consultation process would have been meaningless
were they to participate then the plaintiffs might argue that is purely speculative. Other first
nations did participate and have received varying promises of economic benefits and contracts
The provincial extinguishment of aboriginal title is harder for the plaintiffs to skirt. The
plaintiffs would have to argue that the permits have not directly or constructively extinguished
Unist’ot’en aboriginal title. It is facially the case that the plaintiff’s use of the land is mutually
exclusive with the First Nation’s aboriginal uses. Unless the project has federal approval, this
The defendant’s assertion that the articles and rights of UNDRIP apply is politically
potent. However, it lacks binding power. UNDRIP is not codified law in Canada, yet. Statements
of goodwill by politicians do not carry legal weight. Judicial adoption of UNDRIP would violate
Legal arguments aside, the largest factor for plaintiff’s continued success in this case
rests in the court’s logic granting them their interim injunction. The plaintiff alleged hundreds of
millions of dollars of economic harms if the project were delayed. The judge knew these initial
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hundreds of millions were connected to a project worth billions of dollars. Should the court
subsequently rule against the plaintiffs, the plaintiffs will suffer even larger harms than first
alleged. The plaintiffs may be relying upon the intractability of the situation they have put
there is a preliminary legal issue. It must first be determined whether the First Nations have a
right to be consulted regarding an international treaty. There is no case law, yet, that
In 2014 the question was first heard in Hupacasath First Nation v Canada (Ministry of
Foreign Affairs) 2015 FCA 4. However, the first nations plaintiffs plead on bad facts; they
challenged the lack of consultation for an international treaty related to international investments.
The Court characterized their alleged future impacts as “non-appreciable” and “speculative”.64
The court did not find that consultation rights did not apply to international treaties. The
court said that the issue turned on “whether … a causal relationship between the Crown conduct
and potential adverse impacts on pending Aboriginal claims or rights – was met. The degree of
causal relationship and whether it has been met in this case lies at the core of the debate between
the parties.”65 Because the adverse impacts against the First nations were considered non-
appreciable and speculative the Crown’s consultation duty was not triggered. It stands to reason
that a plaintiff alleging a strong causal relationship and appreciable harms to First Nation’s
interests would trigger the duty to consult. Given the direct connection between the CRT and
64
Hupacasath First Nation v Canada (Ministry of Foreign Affairs) 2015 FCA 4 at para 8.
65
Id. at para 85
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water resources used by the First Nations, this hurdle should be easily proved given their past
harms.
Should the defendant’s in Coastal GasLink Pipeline Ltd. v. Huson prevail this might
change the landscape of consultation rights for the CRT First Nations depending on which claims
Should the defendants succeed on their aboriginal title claim, then the CRT First Nations
may be able to withhold consent. Withholding consent is premised on their ability to establish
aboriginal title. Withholding consent would still be subject to overriding. Overriding the CTR
First Nation’s consent may not be difficult depending on the type of adjustments that are made to
the treaty. Adjustments that do not change the high-water mark or the availability of resources
likely will not be regarded as preventing future generations use of the land.
Should the defendants succeed on a broad argument that reconciliation is a social and
political process that is not being promoted through the current regime of consultation
duties/rights, it is very unclear what a court might substitute instead. A consent-based framework
would be best, but this claim is not clearly prescriptive and the outcome is highly volatile. At the
least it might create space for the CRT first nations to point to social and political factors that
Should the Defendants succeed on the claim that the anticipated consultation would have
been meaningless and acted as a screen for the government’s unilateral action, this may not help
the CRT First Nation’s that much. It would be less helpful because it is a fact-dependent
determination. While the government clearly already has considerable infrastructure and
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resources lined up with the current CRT, the First Nations would likely have to show further
Should the defendants succeed on the claim that the province cannot extinguish
aboriginal title, this would have no benefit for the CRT First Nations as the CRT is a treaty
negotiated by the federal government. The federal government has the power to extinguish
aboriginal title.
Finally, should the defendants succeed on their assertion of UNDRIP rights, specifically
the right to free, prior, and informed consent, then the CRT would have a new powerful legal
tool at their disposal. Their ability to withhold consent could force the government to make
beneficial concessions. However, this could result in political push back. Already, the specter of
an indigenous veto has conservative politicians and business groups objecting.66 Counsel for the
In the alternative, the CRT First Nations may face a diminishment of their rights if the
plaintiffs succeed in Coastal GasLink Pipeline Ltd. v. Huson. Should the plaintiffs succeed
because of the anticipated harms of their project being canceled this might send a message to the
government and industry that indigenous rights can be circumvented by the creation of
precarious situations for themselves. That is, they could intentionally line up vast resources and
seek interim injunctions should the indigenous people object or insist on their rights in a manner
could ensure that there will be even greater harms should the court rule against them thereby
allowing the gravity of their economic heft to roll over dissent. The CRT dams are potentially
66
Larry Lintz, UN declaration doesn't give Canadian First Nations a veto: minister Vancouver Sun (2016),
https://vancouversun.com/news/politics/un-declaration-doesnt-give-canadian-first-nations-a-veto-minister (last visited May 6,
2019).
23
one such instance. The dams already exist and are huge infrastructure projects with tens of
millions of dollars contingent on their continued operation each year. Not to mention the large
amounts of property damage that might result should they cease operation due to a court
decision. Overcoming economic inertia may not be possible for the CRT first nations.
Conclusion
Coastal GasLink Pipeline Ltd. v. Huson brings tensions between the Canadian
government and the First Nations into sharp focus. It raises serious questions about the case law
for consultation rights, aboriginal rights, and the pledges to adopt UNDRIP. How the Court rules
on these questions is potentially highly volatile and may result in significant legal empowerment
or disempowerment for the First Nations affected by the CRT. Looming over many of these
considerations are the sunk economic costs associated with the original CRT. Consequently, the
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