Spookw and the Northern Gateway Pipeline proposal

by reconciliationproject

While writing about the Behn case, I suggested some scepticism about what I felt was a policy reason driving the Court: the spectre of individual aboriginal rights claims. That allowing individuals to action aboriginal rights claims might throw a wrench into the treaty negotiation process and could even require negotiations with clans, families or individuals!

Then along came the Spookw case. Unlike Behn, which involved individuals, the plaintiffs in this case included hereditary chiefs, First Nations and the Gitxsan Legal Aid Society. Also, unlike Behn, the plaintiffs in this case did not attempt to assert aboriginal rights or title, in fact they didn’t assert that the defendant Gitxsan Treaty Society (GTS) could not assert rights or title, either. This is a claim in negligence against the BC Treaty Commission.

Spookw raises important issues of representivity, rights and how First Nations rights holders are organized internally. While the Spookw decision is fairly narrow and technical, effectively avoiding addressing these problems, the issues are of current interest. The defendant Gitxsan Treaty Society (GTS) has recently come under fire for supporting a major pipeline development. More accurately, the GTS is under fire for signing on to this project without effectively consulting within the relevant communities, quite likely in violation of traditional law (I’m happy to confess I know very little about Gitxsan law).

As a disclosure, readers should be aware I hold one share of Enbridge stock, the proponent of the ‘major project’, the Northern Gateway Pipeline. I can discuss why I own it in a later post on corporate social responsibility and why indigenous advocates should be shareholders in major resource companies.

Like Behn, I found the plaintiff’s attempt to frame the claim in Spookw, if I understand it correctly, a tad complicated but entirely reasonable. The basic problem plaintiffs raise in Spookw is alleged undemocratic behaviour by the Gitxsan Treaty Society. This is summed up by the Court nicely at paragraph 20:

The plaintiffs’ complaint is that over the years the GTS has unduly restricted the involvement of the plaintiff hereditary chiefs and Indian bands in treaty negotiations. They complain that, amongst other things, GTS has declined to take direction or input from the Gitxsan chiefs, restricted debate on matters of concern to all Gitxsan, and conducted its affairs in a secretive and “oppressive” manner that was unfairly prejudicial to the plaintiffs.

This manifested in a claim of oppression against the GTS, a claim of negligence against the British Columbia Treaty Commission and a claim of breach of fiduciary duty and “duty of honour” against the federal and provincial Crowns. This decision deals only with respect to the negligence claim against the BCTC.

GTS represented that it operates by consensus, while the funding criteria for the BC Treaty process requires the approval of a First Nations constituency before requesting funds from the Commission.

The plaintiffs’ proposed principle would be that the authority to negotiate is not plenary authority. In other words, if the GTS makes representations that it operates by consensus and is later shown to be operating otherwise, GTS should not continue negotiating, and should not receive funding to do so. The authority of the GTS to negotiate would be limited to its ability to adhere to these representations.

Despite plaintiffs repeated statements that the GTS does not represent them, the GTS continues to receive funding – and I assume, continues to negotiate on their behalf.

The Court denied this claim, holding that the requisite relationship of proximity – a requirement for a claim in negligence – had not been met. The Commission has a relationship with the GTS and the GTS has a relationship with the claimants. As in Behn, the court cited a policy reason for doing this (at para 41):

[41] The effect of the plaintiffs’ argument is to turn the role of the Commission somewhat on its head. The Commission is required to respect the self-governance of the First Nation at the treaty table. I am not persuaded that the Commission has a duty is to involve itself in the governance of a First Nation by acting to protect the interests of a minority group within the Nation. In my view, the Commission’s duty is to the collectivity, not the individuals represented.

Here, you see a court grapping with a bit of a problem. On one hand, the court notes that indigenous self-determination does not impose a duty on the Commission to become involved in internal matters of governance. On the other hand, the Gixtsan Treaty Society has freely committed itself to a consensus-driven process, and it has been alleged the process is no longer consensus-driven.

It’s not clear why matters of ‘internal governance’ merit a shield in this case, as opposed to, say, custom elections. The distinction for me is I’ve never actually seen a negligence claim in the latter, whereas what this court is discussing is a proximity/duty of care analysis related to negligence on the part of the Commission – essentially that the Commission fails to diligently hold First Nations negotiating partners to mutually agreed terms for negotiating.

And that may make all the difference here.

On that last note, it would seem from both Spookw and Behn that some deep thinking may be required on the relationships between individuals, First Nations and other collectives, particularly in the rights context.

Whereas in Behn, one may argue convincingly that individuals already possess a right of redress for indigenous rights violations under international human rights law, the principle here is murky. Can a collective fetter its ability to negotiate or settle? If such authority is fettered, should courts intervene to enforce such self-imposed conditions? Or does self-determination preclude legal consideration of the interest of individuals or minorities? (If so, then where is the limit, as there are clearly some legal vehicles for doing this already?)

I also add that it is impossible to achieve reconciliation without full and meaningful engagement with First Nations, including all members and minorities – particularly where the predecessor indigenous nation operated on the basis of consensus. It seems both risky and harsh to ignore such matters of representivity; presumably to deal with them during voting on an agreement in principle or ratification (forgive me, I’ve never been involved in the BC Treaty process so I may overstate the risk).

I find it very odd that a major pipeline producer would publicly announce an agreement with the Gitxsan Treaty Society, particularly without executing a bit more due diligence on representation and consultation issues. The Spookw decision was released several months ago (apologies, I thought I had posted this several months ago), and speaks directly to some of the risks of signing such agreements with the GTS.

In fact, I wouldn’t be surprised if the Spookw plaintiffs are appealing the decision, and whether they are or not, one should anticipate this latest agreement will likely be subject to a very similar claim.

Given my commentary on Behn, it goes without saying that I believe such an agreement, if it lacks consensus among the Gitxsan communities, traditional councils and possibly even citizens, can be challenged on the basis it either wilfully or negligently misrepresents that Gitxsan rights holders support the project. Here, though perhaps citizens may (in my mind wrongfully) lack standing to vindicate their rights, it is likely that hereditary chiefs and traditional decision makers may attempt, and may attempt successfully, to impugn or invalidate the agreement.

While private corporations do not have a duty to protect aboriginal rights, general principles of law prohibit them (as anyone) from misleading regulators or other corporate actors, say markets and investors. If this is the case with this particular agreement, it means the value of the agreement is greatly diminished and the agreement itself becomes remarkably marginalized.

Even worse for Enbridge, the duty to consult and accommodate rests with the Crown. If this ‘agreement’ has not been agreed to by all First Nations, it is extremely likely those First Nations can and will challenge regulatory approvals for the project on the basis they have not been sufficiently accommodated.

As evidenced by both Behn and Spookw,challenges related to representivity, internal organization and customary law make courts very uncomfortable. This means kicking such issues back into litigation will likely require one or more trips to appellate courts, and potentially the Supreme Court, to get a clear answer.

Litigation would be an expensive proposition for the Gitxsan. In my mind, it would be regrettable to do so here, although I would welcome the opportunity for Canadian courts to address such issues in order to prevent recurrences of such confusion.