With all the debate around Enbridge’s Northern Gateway pipeline, competing interests fail to question the ownership of the land on which it is projected to be built. One look at a map would suggest that the land is well within the generally accepted boundaries of Canada, however, a closer look says otherwise.
As it stands, treaties have not been established in most of British Columbia, except for Vancouver Island, 2,000 square kilometers in northwestern B.C. and the northeastern corner of the province. Therefore, the land on which the pipeline will be built does not technically belong to Canada.
English Common Law, which is the foundation of Canada’s legal system, establishes four bases on which land can be acquired: by military conquest, where one nation takes over another during war; by cession or formal transfer, where a treaty is signed between two sovereign parties, wherein one of them relinquishes sovereignty to the other; by annexation, where one nation unilaterally declares its sovereignty over the other without military action or treaty; and through the settlement of “no man’s land,” a place where no one lives and that no one claims, also known as terra nullius. Canada relied on the fourth premise, terra nullius, to justify its occupation of B.C. To deal with the obvious contradiction between the presence of Aboriginal Peoples in B.C. — like the Dene, Okanagan and Sekani — and the requisite of terra nullius that the land be unoccupied, it has been stipulated that land was unoccupied unless the peoples living there had a concept of land tenure. Research done in recent years demonstrates that the Aboriginal Peoples of B.C. have a very complex and deeply entrenched concept of land tenure.
As it turns out, the third premise, annexation or assentation of sovereignty, can’t be taken when dealing with Aboriginal Peoples in Canada. The Royal Proclamation of 1763 explicitly states that the “Nations or tribes of Indians, with whom we are connected . . . should not be molested or disturbed in the possession of such parts of our dominions and territories as not having been ceded to or purchased by us . . . Any lands whatever, which not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians.”
Section 25 of the Constitution Act of 1982 affirms the rights and promises made by the Royal Proclamation of 1763. This means that sovereignty can’t be asserted over Aboriginal Peoples through military means, annexation or assentation of sovereignty. Aboriginal land, and therefore sovereignty, must be formally surrendered through treaty under Canadian law.
Most of the land in B.C., with the exception of the territory covered by Treaty 8, the Nisga’a Final Agreement and the Douglas Treaties, does not belong to the Canadian government. This creates problems for Enbridge since a considerable part of the Northern Gateway’s proposed plan transverses this land. Furthermore, according to the Royal Proclamation, the Canadian government is constitutionally obliged to prevent the exploitation of lands that have not been given up through treaty.
It follows, then, that the Northern Gateway project would be in direct violation of both Canadian law and aboriginal rights, according to both the Royal Proclamation and the Constitution. Because Aboriginal Peoples have retained sovereignty over their land, we are not dealing with an issue of majority rules. If so much as a single nation along the route is opposed to the construction of the pipeline, the entire process will be stopped in its tracks.
As it stands, Enbridge can’t build the pipeline, nor can the federal government unilaterally give the go-ahead to build unless treaties are established or each individual nation agrees to the process. In the meantime, the Northern Gateway pipeline will remain a pipe dream.