Front Burner - Wet’suwet’en: Why B.C. is a battleground for Indigenous land rights

Episode Date: February 14, 2020

It’s been a week of nationwide protests, blockades and arrests over the Coastal GasLink pipeline, a section of which would pass through traditional Wet’suwet’en territory in northwestern British Columbia. At the core of this conflict is a long-running dispute over who has authority over the land where the pipeline would be contructed. Today on Front Burner, CBC’s Duncan McCue offers a close look at the pivotal 1997 court case that set the stage for this dispute: Delgamuukw vs. British Columbia.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Jamie Poisson. Across the country all week long, there have been protests. Rail traffic shut down. Tens of thousands of people have had to change their travel plans. And it culminated on Thursday evening with an announcement from Via

Rail. All rail operations would be cancelled across the country until further notice. Earlier this week, access to the B.C. legislature was prevented. City intersections obstructed. All in support of the hereditary chiefs of the Wet'suwet'en Nation, whose blockade on this one road in northern British Columbia has been preventing the construction of a natural gas project called the Coastal GasLink Pipeline. That is, until the RCMP moved in this week, arresting several protesters clearing the

way for construction. At the core of all of this is a fight over who controls the land that pipeline is supposed to go through and whose laws govern that land and the decisions about what happens on it. Today, a close look at the pivotal court case in the 90s that set the stage for this dispute, and in theory was supposed to have resolved conflicts like this. My colleague Duncan McHugh is here, and he's been following this story for decades. This is Frontburner. Hi, Duncan. Thank you so much for being here. Hi Jamie, good to be here. So, could we start here?

Why is British Columbia always at the center of disputes over Indigenous land title? What is it about British Columbia? I mean, Canadians are often asking that when it comes to Indigenous issues. Here's the thing. It's a really, really old story in British Columbia. We're going back to 1871 here, which is when British Columbia became a province. And from that, right, those early, early days in British Columbia, the province, the colony at that time,

said that Aboriginal title, Indians' right to land, didn't exist. Think about it. In the 1870s, the gold miners are coming up through the province. They're starting to explore different parts of the province. And the indigenous people are saying, hey, whoa, whoa, whoa. Who are all these people interfering with our hunting rights, getting in the way of our villages, all this kind of thing. And at that point, it was decided, what rights do Indigenous people have to land?

And the province of British Columbia in 1871 said, Aboriginal title doesn't exist. And that has been the issue in British Columbia for over 150 years, has been trying to figure out the quote Indian land question. And was there clarity in other provinces or more clarity in other provinces? What was different in British Columbia as opposed to the prairies, as opposed to Ontario, is that those provinces are mostly covered by what are called land session treaties. And so the treaties that were signed between the Crown and the First Nations from Ontario west to Alberta

involved the surrender of land. In British Columbia, there were a few examples of treaties, whether it was the Douglas Treaties in the 1850s on Vancouver Island or a little bit of Treaty 8 up in northern British Columbia, that are considered to be land extinguishment treaties. But other than that, all of British Columbia is unceded. Indigenous people never have formally surrendered land, except for the cases of the modern treaties now that we see. Okay, right. When we hear this concept, unceded land. That's right. This is what we're talking about here. That's right. So I want to zoom forward here.

The 1990s, there is this pivotal case, the Dalgamook case. We've been hearing it a lot lately. Huge case. And it's a Supreme Court ruling that's essential to understanding what's happening and what's so it isn't. Right now, it deals with

some of what you just spoke about the supreme court has written a new and sweeping definition of the rights of canada's native people to their traditional lands aboriginal title the court has said is titled to the land it is nothing ambiguous it is not about just hunting or picking berries or those it is titled to the land which is what you were fighting for ever since this case started. And so what was this case all about? The fight in so much of British Columbia was what rights, if any, do Aboriginal people have in the province? And the province of BC is arguing over and over and over again, we've extinguished all your rights. You have no rights to land.

In 1984, the Gixxan Wet'suwet'en people, under their hereditary chiefs, their traditional form of governments, decided to go to court and assert ownership, ownership of the land. Said, no, BC, you don't have rights to make decisions about our forests, to put in mines, to put in pipelines, that kind of thing. It's our land. We have an ownership right. It took almost 15 years for the Supreme Court of Canada to make its way up to the, and these courts, I mean, the lower level courts took, you know, years and years, cost millions and millions of dollars. But finally, the Supreme Court of Canada in 1997 came down with this really, really pivotal decision, the Delgamouche decision, which is what you just mentioned. And Delgamouche was one of the hereditary chiefs.

And what did they decide? So a couple of things. One, they said, absolutely, Aboriginal title exists, which means that Aboriginal, Indigenous people, Aboriginal people have a right to land. And that was pivotal, because up until then, the province was more or less denying that they had any rights to land. They concluded that it was a communal right. So this wasn't a right that could be exercised by individuals, but it was exercised by the collective. And they also said that those rights, Aboriginal title rights, are based on the relationship that Indigenous people had with their lands for a long-standing period. Preceding Canada, essentially.

From the pre-existing occupation. That's where Aboriginal title comes from. And so before we talk about how that's played out, I understand this decision also played an important role in your career in journalism, right? The funny thing was is that at the time I was a baby lawyer. So I had gone to law school to learn about Aboriginal rights and perhaps to be involved in that field, but I was also balancing journalism. When the Delgo-Mouche decision came down,

it was a huge decision from coast to coast to coast, and I was an articling student at the time. The CBC Vancouver newsroom was looking for someone to do a man-on-the-street rant about the importance of this decision, and I ended up getting a phone call saying, can you come in and talk about the importance of Delgamook for two minutes? I did that. And then afterwards, a news producer said,

have you ever considered being a reporter? And to make a long story short, that's how I ended up coming on the CBC. That is a very cool story, Duncan. Okay, okay. So we have this decision that came down in 1997, and it says to Aboriginal people, no, you actually do have ownership over land. Well, not quite. See, this is the tricky part, because what it said was Aboriginal title exists, but the Supreme Court of Canada didn't tell us where it exists. They sent it back to the lower court and said, and I actually said, you guys go negotiate this. This is not for

courts to try to figure out. So it left some stuff open. It left so many questions. In some senses, it defined many important things, but it left so many questions. Nobody knew exactly where Aboriginal title existed. The other question that it raised is who are the rights holders? That's been a really thorny question. You know, whether it's a band council or whether it's hereditary chiefs, the Supreme Court of Canada left it very open. The Supreme Court of Canada left it very open. And is it fair for me to say that in the intervening years, we haven't really answered those questions? We've started to answer some of them because, again, what we see is that Indigenous groups in B.C. and right across the country have been kind of trying to move the goalposts along through successive court cases. And so this brings up the Tsilhqotcoatl decision, which came down a few years later. The Tzilcoatl people took Delgamuk and this declaration that Aboriginal title exists and

said, we want to claim our territory, which is up near Williams Lake. It's in the interior of British Columbia. The province was arguing that, okay, you may have Aboriginal title over little tiny bits of land that you use really intensively, like your hunting campsilcotin people exercise Aboriginal title over this large territory, right? And not just these postage stamp little spots all over your territory. So that was a really important clarification. What Roger Williams and the Chilcotin chiefs told the courts, their ancestors had been saying since settlers first arrived, their lands were still theirs. Today, Canada's highest court responded.

I was ecstatic to find out that we had title and it's about time. So if the Supreme Court found that for the Chilcotin people, they had ownership over this large swath of land, why? And you use the term ownership, but I'm just going to be really careful with that. I keep using this term and I have to stop using it. Well, because it's Aboriginal title. If you're going to look at it from a strictly legal perspective, there will be Indigenous groups and voices who will say, we own this land, lock, stock and barrel.

You hear that sometimes from a Canadian legal perspective, it's an aboriginal title is the proper term. And what's the difference? It's akin to ownership, but it's not quite ownership in the way that the Euro-Canadian legal system understands it.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections. So we have this decision that found that the Chilcotin people had a title to a large swath of land. And so does that mean that the Wet'suwet'en people also have title to the large swath of land that they live in? You don't have consent to enter our territory! You are inv back away from that gate right now which brings us to the present day because so very few groups have the money the time the legal team to take

cases the 10 15 20 years to the supreme court Court of Canada to get a determination about where their title exists because they need to present so much historical evidence. They need to hire experts to show where they used. So these battles go on years and years and years. The Gixxan Wet'suwet'en, after the Supreme Court of Canada told them back in 1997 to go back and figure this out, you politicians and Wet'suwet'en people. They never figured it out.

Okay. And the Chilcotin people did do that. And so... They're in the process of doing that now. They have established a relationship with the province of British Columbia, which is, one would hope, somewhat akin to a nation-to-nation relationship where they are starting to try to negotiate land use issues, like a park, for example. Why did they never end up being able to sort this out? What you saw in the wake of the Delgemuch decision

was that the Wet'suwet'en people had put so much energy and effort and money into arguing the original court case that it was difficult to carry on the negotiations afterwards. There are divisions within the Wet'suwet'en people. Right, they're not completely united in their opposition of the pipeline. So there are some that would like very much to see economic development, who would like to see jobs in their territory. And there are others who feel that these are incursions into their lands

that are disconnecting them from their traditional trap lines and don't want to see it happen. The Wet'suwet'en people are not necessarily unified. So when B.C. Premier John Horgan says that this is essentially an issue that has to be worked out within the Wet'suwet'en nation... ...from the peace country to Kitimat with Indigenous communities that want to see economic activity and prosperity take place. All of the permits are in place for this project to proceed. Is that what he's talking about?

Yes and no. I mean, yes, who the rights holders are, who the government should be dealing with, those are important questions for the Wet'suwet'en people to sort out. It's a question of nation building. It's a question of governance that is particular. It's an internal discussion amongst the Wet'suwet'en. But I mean, they would argue, I think, that the Canadian state and the province of British Columbia are supporting one side of the battle, the colonial system, the Indian Act system, that the band council is where the money is flowing, that the hereditary chiefs, in most cases, are not necessarily seeing the financial benefits that flow with the fiduciary relationship between Canada and the Wet'suwet'en Nation. So they would say, you know, to suggest that it's all on the Wet'suwet'en to sort out their issues, ignores who the province and the federal government prefer to deal with, which is the Indian Act ban chiefs. And then I understand, and correct me if I'm wrong, but I understand on top of all of this is this added factor that British Columbia has signed the UN Declaration on the Rights of

Indigenous Peoples under it. And the big part of that, I mean, it's an important document for all kinds of different reasons to Indigenous people around the world. But the big part in this discussion is Section 32, which deals with the responsibility of a state government to get the free prior informed consent of the Indigenous peoples when there are resource projects going on in their territories. The issue is who represents Indigenous people in this particular context. So this injunction that the RCMP has enforced over the last week. They have arrested protesters on this road, on Wet'suwet'en territory. The injunction hasn't decided the outcome, right?

And that's the really, I mean, we hear this rule of law being discussed on a fairly regular basis in this conversation. That's the nub of it, is that, well, the injunction is being enforced. That's a different test, a different legal test that doesn't necessarily take into account the deeper consideration of where Aboriginal title exists in the Wet'suwet'en territory. And that would require, as I said, a very complex legal case that for whatever reason, neither the province of British Columbia nor the Wet'suwet'en people have embarked upon at this moment. So we don't know exactly.

There has been no legal determination as to where their title exists. That doesn't mean it's been extinguished. It hasn't. It's there somewhere. They just haven't jumped through all these legal hoops in order to prove it? That's right. And so is that the only path available at this moment? And you just raised a really good point that Indigenous groups have been arguing for quite a while.

We shouldn't have to jump through all these costly, time-consuming, adversarial fights over where title exists. Let's just assume that title exists over these territories and then start to negotiate based on those rights. That hasn't necessarily happened in British Columbia between the province of BC and the Wet'suwet'en people. Okay. Duncan, thank you so much for waiting through this with me today. I'm very grateful that you have this incredible background in law, but that you also decided to be a journalist. And my mother will say, oh, good, that three years of law school

didn't go to waste. Thanks so much, Jamie. So, of course, Duncan McHugh is also the host of Cross Country Checkup on CBC Radio. And on Sunday, they're going to be talking about what's happening in Wet'suwet'en, including your reaction to the BC pipeline protests. So please join Duncan on Sunday. You can catch him on Cross Country Checkup. And before we end the week, just an update on a story we did a month ago on facial recognition technology.

At the time, this company called Clearview AI was in the news, thanks to the New York Times, an investigation titled, The Secretive Company That Might End Privacy As We Know It. Basically, this company had created a facial recognition app that allows the user to take your picture, upload it, and then get to see other public photos of you. Their database contains more than 3 billion photos, great from sites like Facebook and YouTube. The Times reported that the app was being used by more than 600 law enforcement agencies. Producer Imogen Burchard and I wanted to know if any of those were in Canada. We asked the OPP and the RCMP and they wouldn't say. But the Toronto police told us that they were not using Clearview AI and that facial recognition

technology they did use only worked from a mugshot database. Then on Thursday, I got a call from Megan Gray with the Toronto police saying that was a mistake. Turns out some Toronto cops had been using Clearview AI starting back in October 2019, quote, with the intent of informally testing this new and evolving technology. She told me that when the police chief found out on February 5th of this year, he immediately gave the order to stop its use, adding that until a fulsome review of the product is completed, it will not be used by the Toronto Police Service. As you might imagine, this prompted many more questions. We put a bunch to the Toronto Police and we will keep you posted on what we hear back. We've also gone back to the OPP, the RCMP and some other police forces

and we're going to stay on this story. Front Burner comes to you from CBC News and CBC Podcasts. The show is produced by Mark Apollonio, Imogen Burchard, Elaine Chao and Shannon Higgins. Derek Vanderwyk does our sound design with help this week from Mandy Sham and Matt Cameron. Our music is by Joseph Shabison of Boombox Sound.

The executive producer of Frontburner is Nick McCabe-Locos. I'm Jamie Poisson. Thanks so much for listening and see you on Monday.