On the Rule of Law, Blockades, and Indigenous Self-Government

Recently, Canadians have been captivated by a set of protests occurring both in British Columbia and Ontario in relation to the Coastal GasLink pipeline. The pipeline is a $6B dollar, 670 km project which runs across Northern British Columbia. In British Columbia, the hereditary chiefs of the Wet’suwet’en lead blockades across the pipeline path, even in the face of injunctions issued against the blockades. On the other side of the country, in Ontario, a blockade led by members of the Mohawk First Nation has brought trains and other travel to a standstill, causing supply shortages in some areas. New protests and blockades pop up almost daily across the country. An injunction was also issued in respect of a blockade in the Toronto/Vaughn area, which was immediately burned by protestors in the area.

In all of this, many have called on police to enforce the various injunctions, because of the principle of the Rule of Law. The Rule of Law, so goes this argument, requires an injunction duly issued to be enforced. Still others rebuke the reliance on the Rule of Law, positing that (1) the Canadian Rule of Law, as presently understood, encompasses claims of Indigenous rights and title and (2) the Canadian Rule of Law does not speak to Indigenous systems of law, separate and apart from colonial law. As a result, in the debates, it is sometimes unclear whose Rule of Law we are talking about, and whether one particular application of a particular rule of law would lead to different results.

While it does matter in what sense we are using the term “the Rule of Law,” I write today to draw attention to two aspects of this dispute that I believe can exist in a complementary way. First, it is clear that on any understanding of the Rule of Law, a system of laws requires courts whose orders are respected. This is true even if one does not view the Rule of Law as the rule of courts. But additionally, what is required, as Dicey said, is a “spirit of legality” which should characterize the relationship between individuals and courts. On this account, the blockades in both Ontario and BC should be shut down, because they fail to respect valid court orders that are contributing to a public order. Canada’s Rule of Law as it is can support no other result.

But second, that cannot, and should not, be the end of the matter. Indeed, the blockades are showing why the current framework of Aboriginal rights vis-à-vis the Canadian state is so lacking. The Rule of Law is not only a fundamental postulate of our law, but it is also an aspirational ideal. There may be ways in which our constitutional order can move towards the ideal of the Rule of Law. On this front, it may be the case that the Rule of Law as currently understood in Canada is not applicable to Indigenous peoples and their systems of government. In other words, we may require an approach which recognizes distinctive Indigenous self-government, as a constitutional matter.  I have made this argument before, but wish to renew it here: Canada’s Constitution can and should recognize distinctive Indigenous self-government.

I write this with the full knowledge that I am not an Indigenous person. And also, I know nothing of the particular Indigenous law that applies in this situation. I am merely intervening in the debate to provide some clarity around what the “rule of law” might mean in this context.

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There are different ways we can understand the Rule of Law. Each of these three understandings set out above are being used interchangeably in the debate over whether the blockades are proper, on one hand, or legal on another hand.

The first understanding of the Rule of Law, the “thin” understanding, largely associates the Rule of Law with the rule of courts. That is, on this account, a court injunction duly issued should be respected. And in this case, there have been injunctions. The British Columbia Supreme Court issued an injunction in late 2018, which was later expanded in 2019 to include emerging blockades.  Further, under this heading of the Rule of Law, a court in Ontario issued a valid injunction against blockades in Ontario on Saturday, February 15.

It goes without saying that the Rule of Law might not exhaustively mean the rule of courts, but that courts are still required in a system of the Rule of Law. This is because there must be some tribunal that can handle competing claims, especially in the context of property. Even if one accepts that Indigenous peoples have their own system of law operating within Canada, courts will be required to handle conflict of laws or jurisdictional contests. The ordinary courts, as Dicey called them, are central to an ordered society in which people can plan their affairs. If that is the case, the law should be respected, as interpreted by courts.

The Supreme Court of Canada has largely accepted this notion of order as central to a society governed by law. In the Quebec Secession Reference, the Supreme Court noted that the “rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs” (Quebec Secession Reference, at para 70). What is required is an “actual order of positive laws which preserves and embodies the more general principle of normative order” (Manitoba Language Reference, at 749). As an analogue to this general principle of normative order, there needs to be arbiters of the law in order to ensure that state action is not arbitrary in nature, itself an aspect of the Rule of Law (see Quebec Secession Reference, at para 70). Courts are the typical arbiters—the regulators, so to speak—of the relationship between individual and state. In order for the normative order to be upheld, then, a respect for courts are required.

This is true even if one takes a more substantive or “thick” conception of the Rule of Law. If one accepts, as some do, that the Rule of Law can encompass substantive policy aims like the promotion of human rights, one still requires the ordinary courts to recognize these rights as a matter of judicial interpretation.  As such, the thick conception of the Rule of Law is parasitic on the thin conception. And all require that the judiciary be respected, and that court orders be followed. This does not bode well for the propriety of the blockades.

But one might take the argument based on the Rule of Law further, by arguing that the Canadian Rule of Law includes Indigenous rights recognized under law. One might make the argument that the Wet’suwet’en have existing Indigenous title to the land on which the Coastal GasLink pipeline will be built. Indeed, in Delgamuukw, the Wet’suwet’en were at the centre of the controversy. There, the Supreme Court outlined its approach to handling claims based on Indigenous title. What it made clear was that Indigenous title was a sui generis sort of right, arising before the assertion of British sovereignty (Delgamuukw, at para 114). However, because of a technicality in the pleadings, the Wet’suwet’en were unable to receive a declaration that they held Indigenous title in the land (Delgamuukw, at para 76) . As such, while the Wet’suwet’en may have a valid claim, it has yet to be proven, and can only be accommodated within the context of the duty to consult, a sort of antecedent framework that preserves Indigenous claims that have yet to be proven (see Tsilqho’tin, at para 2).

While there are some questions in this case about who the proper “consultees” were, the bottom line is that Wet’suewet’en title has never been proven over the lands in question. And in the context of a Canadian Rule of Law argument based on Aboriginal title, proof is the centrepiece (see the test for demonstrating Indigenous title, in Delgamuukw at para 143). A blockade relying on these rights must respect their fundamentally judicial nature, in terms of Canadian law: they are recognized by courts, even if they predate the assertion of British sovereignty. One using an argument based on Aboriginal rights recognized under Canadian law, then, cannot justify the blockades on this ground.

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Thus far, I have reviewed the Canadian-centric way of understanding the Rule of Law. Under these two conceptions, the blockades should come down. But to my mind, this point is insufficient and incomplete.  That is because the Canadian version of the Rule of Law may not be cognizable to Indigenous peoples. Indeed, the blockades reveal that there is a problem of much bigger proportions: the true compatibility of Indigenous systems of law in relation to Canadian constitutional law.  That is the real issue on which the blockades shed light.

I am not an expert on the Wet’suwet’en system of law, but Indigenous peoples may make the claim that Canadian court orders do not apply to them, because they are a sovereign nation. It is true that the Supreme Court of Canada has recognized, in the context of Canadian-Aboriginal law, that Indigenous peoples have pre-existing systems of law and governance that predated conquest. And it has been widely recognized, as Chief Justice McLachlin once said, that settlers committed “cultural genocide” against Indigenous peoples. All of this provides necessary context to the acts of the blockaders.

But, because of the failure of the Charlottetown Accord, Indigenous peoples do not have inherent jurisdiction recognized in the Canadian Constitution. That Accord would have recognized the inherent nature of Indigenous self-government, and made it so that the right to self-government is not contingent on negotiations. Indeed, the right to self-government would have included the right to “develop and maintain and strengthen their relationship with their lands, waters and environment.” This is a fundamental difference from the status quo. Currently, Indigenous rights  must be proven in court to be recognized. The judicial system is thus the locus of Indigenous rights, under s.35 of the Constitution Act, 1982. But inherent jurisdiction, recognized as a constitutional matter, would mean that Indigenous peoples have always had a constitutional basis or jurisdiction to act over matters within their remit. This turns the matter into one of jurisdiction. Inherent jurisdiction may mean that Canadian courts have jurisdiction to issue court orders, but the analysis would be different; instead of proving a “right”, Indigenous peoples would have a recognition of their jurisdiction, and the analysis would be akin to a federalism analysis. As a matter of constitutional amendment, this would put Indigenous systems of law on the same playing field as Canadian law, turning disputes over rights into disputes over jurisdiction. We should encourage our political actors to solve the disputes between the Canadian government and Indigenous groups through constitutional and political means, not only to provide clarity to these sorts of disputes, but to recognize the legal fact of existing Indigenous systems of government.

Questions regarding proof of Indigenous rights and title are currently difficult to resolve under the status quo of s.35 litigation. This is because courts are ill-suited to deal with the essentially political and jurisdictional task of recognizing distincitve orders of government and the lands on which they sit. Questions of proof are subject to years of litigation in court, putting dire pressures on Indigenous groups and government resources. One only need look at the Tsil’qhotin litigation for proof-positive of this point.

Additionally, this solution is not anathema to the Rule of Law. As the Court noted in the Quebec Secession Reference, constitutionalism and the Rule of Law are closely related principles. Once the Constitution recognizes distinctive Indigenous self-government, it becomes a matter of constitutional law, similar to the jurisdiction of the provinces represented in s.92 of the Constitution Act, 1867.

Some people may view this solution as a pipe dream. It is only so because our politicians lack moral courage. But in terms of the legal analysis, Canadian courts have the tools to manage conflicts of law and jurisdictional wrangling. Our federalism has been built on such wrangling for over 150 years, with provinces and federal government vying for power based on their constitutionally-delegated powers. Courts have developed the tools to manage jurisdictional disputes. Those same tools could be applied in this context as well. And of course, there are nuances to be worked out with this solution, as well. While Constitutions can set frameworks for government and provide rules for interjurisdictional disputes, land and resources will continue to be hot button issues subject to negotiations againt the backdrop of constitutional guarantees.

But, for the present moment, courts will need to exist and be respected. An existing system of Indigenous law, without more, cannot justify the disobeying of a court order simply by virtue of its existence. For now, so long as Indigenous peoples fall under the jurisdiction of Canadian courts, the blockades cannot stand as a matter of the Rule of Law. But this does not mean that Canadians, and Canadian leaders, should not bear the onus to complicate our idea of the Rule of Law. We should be looking to recognize inherent Indigenous jurisdiction over matters as an analogue of our own Rule of Law, just as we do in the context of federalism.

The bottom line: the blockades, under any conception of the Rule of Law, cannot stand in the face of a court order. But the blockades do illustrate a larger issue. As I have written before, Canadian understandings of the Rule of Law have to evolve to take account of Indigenous law. Surely, given our federal structure, this is a possibility.

A Funny Thing Happened on the Way to the Pipeline…

The Rule of Law need not be exclusively the rule of courts. But in order for a society to be governed by the Rule of Law, even those who advocate a “thick” conception of the Rule of Law say that we need an impartial system of courts (see Tom Bingham, “The Rule of Law”; and relatedly, Trial Lawyers, at para 38). Concomitantly, the Rule of Law is not simply Rule by Law; I posit that the Rule of Law also requires a culture of respect for the law by those engaging in the court system. What happens when litigants try to, in service of their own goals, get around orders of a court?

A saga in the Federal Court of Appeal is showing the results. The Trans-Mountain expansion project is a controversial pipeline expansion project that has caused a great deal of consternation among environmental and Aboriginal groups. A number of these groups challenged the legality of the government’s decision to approve the expansion project in the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 224 [Raincoast Conservation I],the Court granted leave to some of these groups to launch a judicial review of the Governor in Council’s approval only on certain issues; other groups were denied leave altogether. The order in Raincoast Conservation I was clear.

And yet, some groups sought to get around the order. Namely, Tsleil-Waututh First Nation tried to raise issues that were not included in the “permissible issues” that Raincoast Conservation I allowed. Tsleil-Waututh explained that it was attempting to appeal Raincoast Conservation I (on restricted issues) to the Federal Court of Appeal, even though the decision in Raincoast Conservation I was rendered by a judge of that same court (Stratas JA). In Ignace v Canada (Attorney General), 2019 FCA 239, Stratas JA held that appeals cannot be made from the Federal Court of Appeal to the Federal Court of Appeal, because there was no statutory mechanism to allow for such appeals.

But Raincoast attempted to appeal Raincoast Conservation I (on denial of leave) in the face of Ignace, to the Federal Court of Appeal. In Raincoast Conservation Foundation v Canada (Attorney General), 2019 FCA 259 [Raincoast Conservation II], the Court (sitting in a panel of three) rebuffed Raincoast’s attempt to basically relitigate issues already decided by the Court.

The Court rested its conclusions on three main premises. First, the appellants argued that the Federal Court of Appeal, as a statutory court, has all the powers necessarily implied in order to exercise its jurisdiction. This, said the appellants, entitled the Federal Court of Appeal (a statutory court) to hear an appeal from itself. But the Court rejected this somewhat bizarre assertion, holding that the Federal Court of Appeal, as a statutory court, would have to be vested with “some statutory language to support an implication that this Court can somehow hear an appeal from itself…” [8]. There was no such language. Second, the Court chastised the appellants for attempting to bring its own policy views into the appeal [10-12]. Namely,

 In their representations, the appellants set out policy views, some of which they unsuccessfully asserted in Raincoast Conservation, above, and urge them again upon us, perhaps in the hope that we might depart from Ignace. They want the National Energy Board’s environmental reports to be brought to court immediately by way of judicial review rather than waiting for the Governor in Council’s overall decision on approval. They want the standards in the Species at Risk Act, S.C. 2002, c. 29 and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 to foreclose the Governor in Council from approving a project, rather than to be just factors the Governor in Council weighs in its public interest decision. They want to appeal from this Court to this Court because the Supreme Court seldom grants leave to appeal. They want the decision of a single judge “in a case of this importance” to be fully reviewable, not “immunized from appeal”.

To the Court, none of these policy views “are the policies Parliament has chosen to implement in its law. We must apply Parliament’s law, not the personal policy views urged by the parties or our own personal views…” [11]. As the Court said, “[t]he policy choices expressed by Parliament in its 2012 law no doubt frustrate the appellants and others. But they should express their frustration in at the ballot box or by other lawful and democratic means—not by relitigating points already decided” [16].

Finally, the Court sensibly tied all of this to the Rule of Law:

I appreciate that the appellants and others are passionate about their causes and dedicated to them. But passion and dedication can never justify disrespect for the rule of law. The rule of law requires those seeking the judgment of the Court to accept the judgment of the Court even when it is not to their liking.

The Court, for these reasons, terminated the appeal.

Why does any of this matter? I think there are a number of reasons why the Court’s order here is important. For one, it is an important statement about creative arguments that attempt to add-on to powers that are statutory in nature. Indeed, it is true that the Supreme Court has said that statutory actors such as the Federal Courts require certain powers “beyond the express language of its enabling statute” to perform its intended functions: see Bell Canada, [1989] 1 SCR 1722. This is just common sense. Courts require certain implied powers to manage process, for example. But this does not entitle the appellants in this case to say that a right of appeal—a statutory creation—exists where it clearly and simply does not in the relevant statutes. To make this argument invites courts to supplement clear statutory omissions with whatever the Court might feel is right and proper. This is an unwelcome twist on the basic hierarchy of laws—especially since the Supreme Court has held that a right of appeal is purely a matter of parliamentary will (Kourtessis, at 69: “Appeals are solely creatures of statute”), not a constitutional requirement of the Rule of Law: see Medovarski, at para 47.

Second, the Court sensibly rebuffed arguments by the appellants that would, in essence, replace Parliament’s law governing pipeline approvals with an alternative system. Such a system would permit, among other things, (1) early challenges to environmental reports, rather than the current system, which only permits judicial review of the Governor-in-Council’s final decision to approve; and (2) the introduction of standards set out in other statutes as mandatory considerations that could “foreclose the Governor-in-Council from approving a project” [10]. These might all be good ideas. But all of these proposals run counter to the law Parliament chose to instantiate the approval process for pipelines. The remedy for the appellants is not a collateral attack on Parliament’s process, but the ballot box, where they can vote in people who wish to make their preferred policy proposal a reality.

One could argue that the Federal Court of Appeal’s own jurisprudence permits the appellants’ preferred approach. In Alberta Wilderness, the Court apparently held that environmental reports “should be seen as an essential statutory preliminary step required by the Canadian Environmental Assessment Act.” More to the point, Tsleil Waututh 2018 apparently held (according to the linked ablawg post cited above) (at para 189) that a reference in Gitxaala Nation (paras 119-127) that environmental reports cannot be judicially reviewed was misconceived.

With respect, Stratas JA dealt with this matter in Ignace, at para 36. The fact that the appellants were trying to relitigate this point speaks to the issue overriding this entire saga: a respect for orders of the court duly issued. But even on the merits, this argument is somewhat misconceived. Reading Tsleil-Waututh 2018 in whole and in context, it seems that the Court, relying on Gitxaala, ultimately concluded that “the report of the Joint Review Panel constituted a set of recommendations to the Governor in Council that lacked any independent legal or practical effect. It followed that judicial review did not lie from it” (Tsleil Waututh 2018, at para 180). And this would find accord with basic administrative law principles, to the effect that only final decisions of administrative authorities are judicially reviewable (Budlakoti, at paras 56 et seq in the context of the doctrine of exhaustion).

Finally, a note on the Rule of Law. One might argue—quite ambitiously–that attempting to relitigate an order of a Court is justified by the policy proposals that a particular litigant seeks to advance. The weight of this argument is dependent, indeed, on how much one identifies the Rule of Law with the rule of courts. To some, court orders may not represent the totality of the Rule of Law. But a system of the Rule of Law is dependent on the respect owed to neutral arbiters of the law and their orders. Those neutral arbiters, in a system of courts, are components of the Rule of Law. They should be owed respect.

That said, we can and should criticize court decisions that we find undesirable. But as litigants acting in the system, there are defined ways to legally change the effect of a decision: by appeal, rather than relitigation.