The rule of law is an important consideration in this dispute. Has Canada complied with its own legal requirements? That’s a question that has largely been ignored in the issuance of injunctions in disputes such as this. Canada’s obligation to resolve this jurisdictional dispute is clear from the case law, but it has failed to do so, mainly because it has declined to negotiate. Injunctions are supposed to be issued only to those “with clean hands” and Canada would likely fail on that point.
The argument that Chiefs and Band Councils along the route, may have signed Benefit Agreements can hardly be said to be proper consent, for I have seen some of them. They do not ask for consent, so much as promise payment for silence. But even if one argues the point, the failure to recognize the traditional law of the Wetsu’wetun is a fatal flaw to that argument. Courts have recognized that traditional Chiefs have an overall say over unceded territory.
Let’s say the United States wanted to run a pipeline from Alaska to Texas and got the BC Government to sign off, through promises of jobs and financial payments. Could Canada not rightfully say: “You need our consent too”? Such is the nature of the role of traditional chiefs.
How to resolve this is the issue. It seems clear that it will take more than words and promises, for history fails Canada on that point. I am reminded of a thought I once had when analyzing the treatment of treaties by governments and in the courts. Indigenous people must feel the way that Paul Simon expressed in his song “The Boxer”:
“I am just a poor boy though my story’s seldom told
I have squandered my resistance for a pocketful of mumbles,
Such are promises,..”
I have said in the past that, if ramped up, Indigenous resistance could paralyze the economy of this country. That resistance will not respond well to court injunctions or more “pockets full of mumbles”. Positive acts of resolution will be needed. Police and military enforcement will only serve to inflame matters.
Frankly, given Canada’s intransigence, and the rising sense of injustice felt by Indigenous leadership throughout the country, I do not like where this is heading.