Since the first settlement on Canadian lands was established in 1608, first nations and European descendants have been in a constant debate of what is law and what is not. First nations tend to operate under customary law, which is not codified and is passed down by generations orally. While the Canadian government operates under common and civil law, which is codified and then used as a basis in the court system. Attempts to eliminate customary law have been made in the past in the form of treaties and acts such as the Indian Act (Montpetit, I., 2011). In the beginning, the Indian Act resulted in a targeted approach to eradicate the first nations and their culture, but has since been amended to try to preserve and integrate aboriginals into a codified form of law. Yet today, lots of first nations leaders cite customary law in attempts to block projects. An example of this is the current battle between Wet’suwet’en hereditary chiefs and the Coastal GasLink pipeline. “At the core of the dispute is the fact that although the company has signed agreements with all 20 elected First Nations along the pipelines path, the Wet’suwet’en hereditary clan chiefs say the project has no authority without their consent” (Smart, A., 2020). Under Canadian law, the elected chiefs have the authority over the reserves that were created by the crown, giving them the right to make decisions as to how the reserve land is used (Hunter, J., 2020). This means that by law, the Costal GasLink pipeline has the right to cross reserve land since the company has been given the consent by the elected officials to do so. The problem is that there’s still clans of first nations that believe they have rights to the land through customary law, but in today’s world, this can’t be the case. All Canadians live on the same land and this requires us to agree upon the same laws. Without a codified rule of law, there’s too much uncertainty in the system for it to work properly. This is why lots of the oil and gas industry has started to give up on Canada, because we seem to have forgotten our own laws. Companies are forced to jump through hoops to get projects approved in Canada due to a system flooded with regulation, but even then, approval is not a certainty. Approved projects now have to pass a non-codified customary law, which scares away investments as there is no firm rulings on if a project can be built. Customary law can’t have a weight in western law as judges are not able to cite an imaginary text and make educated and consistent decisions. At the same time, it’s unfair to companies attempting approval, as inconsistent and fictitious rules are hard to follow. That being said, customary law needs to be codified in order for first nations demands to be met. Until that happens, the Canadian government needs to continue to rule in favor of the laws in place, not the ones posted on Facebook.
References:
Montpetit, I. (2011, May). Background: The Indian Act. Toronto, ON, CAN: CBC News. Retrieved from https://www.cbc.ca/news/canada/background-the-indian-act-1.1056988
Smart, A. (2020, January). What the Wet’suwet’en case says about how Canadian courts address Indigenous law. Toronto, ON, CAN: CTV News. Retrieved from https://www.ctvnews.ca/canada/what-the-wet-suwet-en-case-says-about-how-canadian-courts-address-indigenous-law-1.4759601
Hunter, J. (2020, January). This pipeline is challenging Indigenous law and Western law. Who really owns the land? Toronto, ON, CAN: The Globe and Mail. Retrieved from https://www.theglobeandmail.com/canada/british-columbia/article-a-contested-pipeline-tests-the-landscape-of-indigenous-law-who/
GGE 2501 Land Administration Blog 