'We still have title': How a landmark B.C. court case set the stage for Wet'suwet'en protests

Amid the backdrop of nationwide protests, blockadesand arrests, Wet'suwet'enhereditary chiefs on the front lines of the fight to stop a pipelinein their traditional territories are pointing to a Supreme Court case from the 1990sthat underscores their authority over the land.

The decision inDelgamuukwvs. British Columbiawas delivered onDec. 11, 1997,acknowledgingAboriginal land title andsetting aprecedent for how it isunderstood in Canadian courts.

"The Supreme Court established thatWet'suwet'enhad never extinguished title to our territories," Molly Wickham, a governance director at the Office of the Wet'suwet'en, said on CBC's The Early Edition. "Within Western law, they have acknowledged that we still have title to our territories and this is an issue about title."

Here's what you need to know about the case and why it's pertinent today.

What is theDelgamuukwcase?

The Delgamuukw decision stemmed from a 1984 case launched by the leaders of the Gitxsan and Wet'suwet'en First Nations, who took the provincial government to court to establish jurisdiction over 58,000 square kilometres of land and water in northwest BritishColumbia.

In 1991, B.C.'s Supreme Court ruled that any rights the First Nations may have had over the land werelegally extinguished when British Columbia became part of Canada in 1871.

The First Nations appealed and eventually the case made its way to the Supreme Court of Canada, which found Aboriginal title could not be extinguished, confirmed that oral testimony is alegitimate form of evidence, and stated that Aboriginal title rights include not only land, but the right to extract resources from the land.

The case has been widely cited as an influencing factor in subsequent court decisions, including the 2014 Tsilhqot'in decision, which further established theexistence of Indigenoustitleto land in British Columbia not covered by treaties.

Why is the case relevant toWet'suwet'enprotests?

Representatives from 20First Nations including the elected chiefs oftheWet'suwet'en signed agreements with Coastal GasLink consentingto the project. The pipeline was subsequently approved by the provincial government.

However, some hereditary leaders have not consented to the project, whichruns through their territories.

In theDelgamuukwcase, Wet'suwet'en hereditary chiefs establishedthat the Indigenous nation hasa system of law that predates the days of elected band councils enacted under Canada's Indian Act.

Under traditionalWet'suwet'enlaw, hereditary chiefs are responsible for decisions regarding ancestral lands.

In the current dispute, some hereditarychiefs saythe decision to approve a pipeline in their ancestral lands without consent is an infringement of their Aboriginaltitle and rights.

Aboriginal title and rights are protected under the Constitution.

Are title rights enough to stop a pipeline?

In theDelgamuukwdecision, Chief Justice Antonio Lamer outlined that Aboriginal title "encompasses the right to exclusive use and occupation of the land."

However, the decision also notes that Aboriginal rights could justifiablybe infringed for the development of agriculture, forestry, mining, and"the general economic development of the interior of British Columbia." Lamer determined the issue should beexamined on a case-by-case basis.

According to a 2014judgment, infringements cantake place only when there's adequateconsultation, and "the benefit to the public is proportionate to any adverse effect on the Aboriginal interest."

Kate Gunn, a lawyer with First People's Law, says the requirements to infringe upon the title rights in favour of amajor projectlike a pipelinewould beonerous.

"In the situation where we have a group that's been in court for years establishing title ... I think that the obligations on the Crown [to justify a rights infringement] would be very high," she said.

No rights infringements were justified through the courts before the Coastal GasLink pipeline was approved.