Court injunction in Coastal GasLink conflict sidesteps deeper legal issues, critics say

In a video of the moments before RCMP officers arrested protesters at a blockade of a Coastal GasLink pipeline construction site in northern British Columbia last week, people on both sides of a door shout back and forth.

"You are trespassing against Wet'suwet'en law," a woman yells.

Police respond that under Canadian law, they are the ones with a right to be there.

"Our authority to enter will come under that injunction," an officer shouts, referring to a 2019 B.C. Supreme Court order prohibiting anyone from "physically preventing, impeding, restricting or in any way physically interfering" with access to the road leading to the site.

The door is hacked apart, and a chainsaw starts revving.

Who is breaking whose law?

University of Ottawa associate law professor Aimée Craft says the question raised in that brief interaction underlies the conflict over the pipeline: Exactly who is breaking whose law?

Craft — an expert on Indigenous laws, treaties and water — says the public has been given the sense that obtaining an injunction, in and of itself, should be enough to put an end to any debate.

But she says that misses the bigger point.

Interlocutory injunctions are supposed to be temporary tools to prevent harm "until there's an ability to fully flesh and make a whole decision based on the facts and the law," said Craft, an Anishinaabe-Métis lawyer from Treaty 1 territory in Manitoba.

"What the injunction hasn't addressed ... is the conflict of laws issue between Indigenous legal orders and ... Western legal systems," she added.

"So that's what you see in that debate in the video [of the arrests]."

'A blunt instrument'

The arrest of more than two-dozen protesters for breaching the injunction has reignited a national debate around the Coastal GasLink pipeline, which, if completed, will span 670 kilometres across northern B.C., transporting natural gas from near Dawson Creek in the east to Kitimat on the Pacific Ocean.

The company has signed benefit agreements with 20 band councils along the project's route. But Wet'suwet'en hereditary leadership says band councils do not have authority over land beyond reserve boundaries.

Media attention on the arrest of two journalists on Nov. 19 led project opponents to fear attention would move from the clash of laws at the heart of the dispute to the issue of press freedom.

B.C. lawyer Kris Statnyk, who practises Aboriginal law, told CBC's Front Burner podcast that the case has shone a light on the frequent use of injunctions to sidestep questions of title and conflicting legal traditions.

Statnyk is an advisory board member of the Yellowhead Institute, a First Nations-led research body based in Toronto that collected data on injunctions in 2019.

After examining 100 cases across Canada, it found that 76 per cent of injunctions filed against First Nations were granted, while 81 per cent filed by First Nations against corporations were denied.

"When First Nations contest the authority of the province or the regulatory processes, like environmental assessment, that fail to acknowledge their lack of consent, companies take advantage of a legal system built to protect the interests of property," the report reads, pointing directly to the Wet'suwet'en case.

"Injunctions have worked as a blunt instrument in opposition to Indigenous law."

Court grants injunction 2 years ago

Coastal GasLink, which is owned by Calgary-based TC Energy, responded to a request for comment from CBC News with an email saying the pipeline is "over 50 per cent complete, fully permitted and has unprecedented support and agreements."

The company initiated legal proceedings against those blocking access to construction in November 2018, seeking an injunction against them in the B.C. Supreme Court. A news release called the civil claim "a last resort and a necessary action in our efforts to safely gain access to the area."

B.C. Supreme Court Justice Marguerite Church granted the interlocutory injunction in December 2019.

As part of her decision, she considered Indigenous legal perspectives, noting disagreement as to "whether hereditary governance is appropriate for decision-making that impacts the entire Wet'suwet'en nation."

"All of this evidence suggests that the Indigenous legal perspective in this case is complex and diverse and that the Wet'suwet'en people are deeply divided with respect to either opposition to or support for the pipeline project," Church wrote.

She said it was difficult to reach any conclusions — especially ones that would invoke the Constitution: "This is not the venue for that analysis and those are issues that must be determined at trial."

But at this point, there's no suggestion that a trial on those issues will take place.

"It's really unlikely," said Michael Lee Ross, a Vancouver lawyer who represented the hereditary chiefs at the injunction hearing.

"For it to happen, the company would want to have to go ahead with it, and all they care about is getting the injunction, getting the protesters out of the way, arrested if necessary, whatever it takes. That's all that matters to them."

Indigenous laws might be 'more just'

The debate over the injunction comes at a critical time.

In 2015, the Truth and Reconciliation Commission said that all Canadians should know the difference between Indigenous laws that pre-date the arrival of Europeans in North America and the body of law that exists within the Canadian legal system concerning Aboriginal people.

"Law is essential to finding truth," the report reads. "It is a necessary part of realizing reconciliation."

The commissioners called on Ottawa to commit to "the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving treaties, land claims and other constructive agreements."

B.C. Chief Justice Robert Bauman echoed those sentiments in a speech to the Canadian Institute for the Administration of Justice earlier this month.

"The Truth and Reconciliation Commission tells us that Canadian law has suppressed truth and deterred reconciliation," he said. "It is this history, and current reality, that gives urgency to our duty to act."

If anything, Bauman said, Indigenous laws might be "more just in that they found their genesis here — not on distant shores divorced from the unique reality of place."

"Settler-colonial law has been an instrument of harm to our relationship. Indigenous legal orders may well be the instrument of its repair."

Political discussions likely, observers say

Most observers agree that any resolution to the dispute between Coastal GasLink and the hereditary chiefs will likely have to involve the Crown and political discussions.

"We're never actually getting to the underlying issues," said Craft, who holds the University of Ottawa's Research Chair Nibi miinawaa aki inaakonigewin: Indigenous governance in relationship with land and water.

"And that's a critique that even the courts have made of the political system. They don't want to be adjudicating every single dispute between the state and Indigenous people because these are not issues that can be easily legally determined."

Craft says Canadian law may be able to exist harmoniously alongside Wet'suwet'en law or it "may be that one has primacy over the other."

"It's not unknown ... to think of competing or incompatible or even complementary systems of law," she said.

"At the very least, there has to be an opportunity [to hear] what these different competing legal systems have to say."