question period — Crown-Indigenous Relations

Dispute Resolution Directive

February 27, 2020


Honourable senators, my question is for the Government Representative in the Senate.

As you know, Senator Gold, in 1997, the Wet’suwet’en chiefs won a transformational decision in the Supreme Court of Canada. The Delgamuukw decision established the rights of Aboriginals to title of their unceded land. In other words, the Supreme Court justices declared that nations like the Wet’suwet’en still hold unextinguished title to their lands. The court ruled that a further trial was required to determine the extent to which that judgment applied to the Wet’suwet’en lands. In other words, the justices noted further litigation was required to reconcile the Wet’suwet’en title with Crown title.

However, according to a recent release of access-to-information documents, the federal and provincial governments went to extreme measures to prevent any such litigation from being filed. Consequently, nearly 25 years later, the long-awaited litigation has yet to take place, and that is why we are in the critical situation today with the Wet’suwet’en, the Province of B.C., the RCMP, Coastal GasLink LNG and the federal government.

An agreement with the Wet’suwet’en in Canada can be made outside of the courts through this government’s own ministerial litigation directive. The directive emphasizes the importance of resolving conflicts expeditiously and collaboratively, reducing the use of litigation in the courts.

Will the Prime Minister and Minister Bennett publicly assure the people of Canada that the government will immediately invoke its ministerial litigation directive so that Canada will be able to resolve the situation outside of the courts and reassure Canadians and the world that the Government of Canada does respect the rule of law, including the Delgamuukw decision?

Hon. Marc Gold (Government Representative in the Senate)

Thank you very much for this important question. I think the most accurate way to answer it is that we must await, at least for a day or so, what emerges from the discussions that are happily taking place today. I think as an accredited mediator, notwithstanding my legal background, avoiding court and settling these matters nation to nation is and ought to be the preferred route. I’m confident in thinking that this would be the preferred solution for all the parties here.

I’m hoping that we will all be apprised of the fruits of the discussions soon, but at this point, I cannot commit the government, and I think it would be inappropriate, as they have only begun to enter into discussions with the hereditary chiefs.


Thank you. It was just announced, of course, that the meetings are occurring today and probably tomorrow. Obviously it’s too late to start that litigation because it will probably take months, if not years, so something else has to be done.

Will the Government of Canada, through the Minister of Crown-Indigenous Relations and the Prime Minister, recognize and agree to the use of Wet’suwet’en legal traditions in their negotiations with the Wet’suwet’en? In other words, will Canada respect Wet’suwet’en rule of law through Minister Bennett in their negotiations today with the Wet’suwet’en and in the future?

Senator Gold

That’s a great question. Thank you for it. I will be very brief, simply to remind this chamber — and it’s not necessarily well known — that in Canadian constitutional law, Indigenous law is considered Canadian law. The courts have been clear about that. I have every confidence that the ministers and the Government of Canada understand that and will use the full range of legal instruments and traditions in its nation-to-nation discussions on these important issues.


I hope you remind them of that.

Senator Gold

And I shall.