Introduction

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

and denying consent for the pipeline for years.

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

trigger their consultation rights.

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

defines the limits of indigenous groups’ consultation rights.

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,

and the First Nations will be at a decided disadvantage.

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

the CRT First Nations.

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

will be integral to establishing their rights in any coming CRT renegotiation.

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

Petronas, PetroChina Co., and Korean Gas Corp.12.

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

“in the range of several hundred million dollars.”25

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

Court left the legal merits for a subsequent court date.

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

Canada and the United states supporting the claim.3031323334

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

claims will be described in this section.

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

common law claim.41 It is a recent and quickly evolving doctrine.

Haida Nation v British Columbia (Minister of Forests), [2004] 3 S.C.R. 511. 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

duty as a veto; the Court stated:

“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

every case cited in this paper.

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

Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103.

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

Minister proceeds to do what she intended to do all along.”48

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

nations advocates. It proclaims:

“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

deprive future generations with the benefit of the land.

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

Nations of Canada, Article 32 of UNDRIP declares:

“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

regarding resource exploitation projects on their lands.

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

UNDRIP, the BC provincial government has pledged to adopt UNDRIP.61

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

legislature has yet to officially ratify.

Arguments the Unist’ot’en Clan could make

The Unist’ot’en Clan has a handful of strong arguments to bring to bear. These arguments
are:
1. That they have Aboriginal title that includes their right to deny consent and that the
Government’s interest in overriding their consent is inconsistent with the Crown’s
fiduciary duty;
59
Notes for an address by The Honourable Jody Wilson-Raybould, PC, QC, MP Minister of Justice and Attorney General of
Canada, Google Drive (2016), https://drive.google.com/file/d/0B_bPXJbq-
wgWenpoa2NIRmgwT2NlWkx3enNSWXJELTFSSzc4/view (last visited May 6, 2019).
60
Bill C-262, openparliament.ca (2019), https://openparliament.ca/bills/42-1/C-262/?tab=mentions (last visited May 6, 2019).
61
Chris Newton, B.C. government adopts UN Declaration on the Rights of Indigenous Peoples Energetic City (2017),
https://web.archive.org/web/20170907162553/https:/energeticcity.ca/2017/09/b-c-government-adopts-un-declaration-rights-
indigenous-peoples/ (last visited May 6, 2019)

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

protected by Section 35 of the Constitution Act of 1982.

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

15
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

of the lands underlying, adjacent, and fragmented by the pipeline.

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

Unist’ot’en land undermines reconciliation. The plaintiff’s using bulldozers to demolish

indigenous traplines undermines reconciliation. Consent is not possible under duress.

Reconciliation is not possible under duress.

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

environment conducive to violence against indigenous women.

Jurisprudentially, if the primary goal of the consultation jurisprudence is reconciliation

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

the ambiguity found in the consultation case law.

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

their pipeline project. Participation in the consultation process wherein concessions,

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

increasingly made the possibility of meaningful accommodation disappear.

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

17
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

their bicycle and threatened to put a stick in their own spokes.

Provincial Extinguishment of Aboriginal Title

The Supreme Court’s opinion in Delgamuukw v. British Columbia is very clear that

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

vires the province.”62

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

title held by the defendants.

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).

18
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

standard of Article 32 of UNDRIP.

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

reasonable conclusion of this evolving doctrine.

Why Coastal Gaslink will likely prevail

Coastal Gaslink will likely prevail for two main reasons. First the arguments mustered by

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

deeply harmed if the case is subsequently reversed.

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

19
that the putative economic benefits of the Coastal Gaslink project are a sufficient government

interest or benefit to override the lack of consent of the First Nation.

The First Nation’s potential claim regarding reconciliation could be construed as a matter

of self-injury. Even the non-indigenous population is subject to police enforcement of

injunctions. The precedent that it would set might allow the First Nations to decry any adverse

treatment as contrary to reconciliation.

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

related to the project.

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

claim likely will not be overcome by the plaintiffs.

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

the separation of powers.

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

20
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

themselves in to force their way through court.

Consequences for the CRT First Nations

Before the consequences of Coastal GasLink Pipeline Ltd. v. Huson, can be analyzed,

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

affirmatively grants this right.

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

21
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

they succeed on.

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

hinder reconciliation for leverage during the next renegotiation.

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

22
resources lined up with the current CRT, the First Nations would likely have to show further

evidence of that the government plans to act unilaterally.

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

First Nations should advise them accordingly.

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

that jeopardizes contractual or investment-based timelines. Large companies or the government

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

legal prognosis is grim.

24