Law prof says Wet'suwet'en hereditary chiefs have legal right to block pipeline

A Dalhousie University law professor says the Wet'suwet'en hereditary chiefs have the legal right to block a natural gas pipeline from being built on their land in northern B.C., but the legality of blockades beyond that territory is complicated.

Earlier this month, RCMP began enforcing a court order against blocking construction of the Coastal GasLink pipeline, which triggered protests across the country in support of the fight against the project.

Wayne MacKay, a professor emeritus at Dalhousie's Schulich School of Law, discussed the legality of the protests that are blocking rail lines across Canada with CBC's Information Morning on Thursday.

The interview has been edited and condensed for clarity.

Do the Wet'suwet'en hereditary chiefs have legal control of the territory?

Mostly, yes. In a 1997 case, the Delgamuukw case in the Supreme Court of Canada, they established that [the Wet'suwet'en] can make a claim to that land and that the way they proceeded was the right way to do that, and that they have to be consulted, and that they can use oral evidence, but they didn't go back to trial as ordered, so the precise boundaries may not have been sorted out.

Does the Wet'suwet'en have a legal right to ask RCMP to leave their land?

My sense is that would be yes, they do. In that, if you accept a certain amount of self-government is now protected and constitutionalized in section 35 of the Constitution Act 1982, they do have some self-governing control, which should include asking them to leave.

It's a nation-to-nation thing. So if the Americans sent their police into Nova Scotia, we'd say, "No, they've got to go. We're a Canadian state." That's how they would see that.

Why would a court grant the injunction to have those protesters removed?

Because they don't fully accept yet, and much of the Canadian law doesn't fully accept Aboriginal self-government, that's not really been defined.

They would be seen as within the Canadian state and part of the Canadian state, so therefore, they are subject to the laws and rules for Canada.

Are the solidarity protests legal?

Well in many ways, they're quite different because the direct Aboriginal rights and Aboriginal title claims don't apply there.

It's [the Canadian Charter of Rights and Freedoms], rights of free expression, freedom of assembly, freedom of association, and they do have the right to do that — to express their views, to gather, to make their views known — but they're also subject to reasonable limits under the Charter.

Traditionally, courts have put some limits on free expression. Obviously, it's an important right, but it's not an absolute right that you can do at any place, at any time.

It's mainly through this reasonable limits clause that any exercise by the protesters that causes people to lose jobs, damage economic interests, those kind of things, are all collective concerns of individuals, not the protesters and the larger Canadian population, and they are legitimate reasons to limit the rights of the protesters, not necessarily completely abolish those rights, but to limit them so that these people are not suffering that kind of damage.

If the solidarity blockades went to court, how would that go?

Well, it's always hard to tell, but I would think the courts might look sympathetically at the rights of those being affected by these protests and say, "Yes, you can continue to protest in some form, but we're going to put limits on that."

For example, maybe you can protest beside the rail lines, but not block the rail lines.

Listen to the full interview below.

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