“To uphold the rule of law, the constitutional recognition of Aboriginal title and governance must be meaningfully applied in Crown decision-making”.

Policy Options Politique. Eugene King, Gavin Smith. Feb. 1, 2019

The world watched in early January as an armed RCMP force entered Wet’suwet’en territory and arrested 14 people. The RCMP was enforcing an interim injunction obtained by Coastal GasLink Pipeline Ltd. (a subsidiary of TransCanada Pipelines) to prevent interference with work on its planned natural gas pipeline crossing Wet’suwet’en territory.

On January 6, just prior to the raid, the RCMP released a statement to the media. Part of the original text said:

For the land in question, where the Unist’ot’en camp is currently located near Houston, BC, it is our understanding that there has been no declaration of Aboriginal title in the Courts of Canada. In 1997, the Supreme Court of Canada issued an important decision, Delgamuukw v. British Columbia, that considered Aboriginal titles to Gitxsan and Wet’suwet’en traditional territories. The Supreme Court of Canada decided that a new trial was required to determine whether Aboriginal title had been established for these lands, and to hear from other Indigenous nations which have a stake in the territory claimed. The new trial has never been held, meaning that Aboriginal title to this land, and which Indigenous nation holds it, has not been determined.

The RCMP subsequently called this portion of its media statement “inappropriate” and removed it. Nonetheless, the RCMP’s statement is reflective of a commonly held view that the Indigenous decision-making authority inherent in Aboriginal title, and in an Indigenous nation’s own laws and governance, does not apply until it has been determined in court or recognized by the Crown in an agreement.

This view effectively puts the burden of proof on Indigenous nations to “prove” to state institutions that their pre-existing title and governance exist in order for that title to apply — a view sometimes referred to as the “prove it” approach. This is in stark contrast to the recognition approach, which starts by acknowledging Indigenous rights and title.

More than two decades after the Delgamuukw decision affirmed Aboriginal title, the Crown’s continued pattern of making decisions in the absence of Indigenous consent — without resolving the underlying title and governance issues — undermines the constitutional foundations that are meant to define Canada. Ultimately, this is about much more than a pipeline.

Why is Aboriginal title (still) not being applied on the ground?

There are several factors that have allowed the Crown to continue making decisions that avoid the implications of Aboriginal title and Indigenous governance on the ground over the two decades since the Delgamuukw decision was made. They include the following:

Aboriginal title cases are long and expensive. The millions of dollars (and many years or decades) required to take an Aboriginal title case to trial, and likely through appeals, is prohibitive for many Indigenous nations. For example, the Delgamuukw case was filed in 1984, started trial in 1987 and received its final appeal decision in 1997 (when a new trial was ordered).

The Crown has generally not concluded agreements to recognize Indigenous title and governance. The Supreme Court of Canada has stated that the Crown has a legal duty to “negotiate in good faith” to reach agreements to reconcile assertions of Crown sovereignty with Aboriginal title and rights. However, there has been a widespread and protracted failure by the Canadian state to honourably reach agreements with Indigenous nations regarding exercise of their title and governance.

When it comes to development proposals and other projects, the courts have held the Crown to a standard of consultation, but not consent. Canada’s constitutional law requires that, until Aboriginal title and related rights are “proven” in court or resolved by agreement with the Crown, the Crown has a duty to consult and, in some cases, accommodate Indigenous nations regarding decisions that may impact their title and rights. While this obligation has required the Crown to engage in more dialogue with Indigenous nations, so far it has also continued to permit the Crown to make decisions over their objections.https://policyoptions.irpp.org/magazines/february-2019/canadas-prove-it-approach-to-aboriginal-title/embed/#?secret=lYnGIE8x4o