The social and political debate involving the protests by the Wet’suwet’en and their allies against the Coastal GasLink project is unlikely to be resolved soon, and tensions on the front lines of the protests seem to escalate with every passing day.

As a current professor and former practitioner of international law, a recent opinion piece asserting that “200 lawyers (and) legal scholars” claim that “settler governments are breaking international law” involving this issue certainly caught my attention. Unfortunately, the piece systemically mischaracterizes the law in a way that should be addressed considering that 200 or so self-identified lawyers and legal scholars reportedly support the views espoused in the piece.

The most flagrant mischaracterization of the law — one that regrettably has become a mainstay in discourse involving Indigenous rights — is that domestic courts “continue to ignore” the United Nations Declaration on the Rights of Indigenous Peoples.

Let’s be clear — United Nations declarations such as UNDRIP are just that: declarations. They are meant to inspire. To encourage. To motivate. They represent the aspirations of the global community. But they do not have the force of law.

The United Nations General Assembly that considers such proclamations is aware of the persuasive — though not binding — nature of these declarations when delegates vote on the measures. There are a whole host of reasons why domestic Canadian courts cannot be said to “ignore” UNDRIP, but chief among them is that UNDRIP is not “law” that courts have a mandate to apply.

Along with mischaracterizing the actual non-binding status of UNDRIP, the piece is similarly misleading in the discussion of B.C. Bill 41 that “incorporates” UNDRIP into provincial law. While Bill 41 is immensely important in that it is the first example of Canadian legislation to integrate UNDRIP domestically, the legislation has the same aspirational character and effect as the international declaration it “incorporates.”

While the opinion piece relies on non-binding sources of law for support, the authors fail to consider some pertinent sources of international and domestic law that run counter to the current cause. The UN Charter, for example, begins with the value to encourage “respect for human rights and for fundamental freedoms for all” — not just for Indigenous groups that oppose the proclamations of, to borrow from the opinion piece, “Canadian settler governments.”

Our founding Constitutional Act establishes the relationship of our branches of government — including of our judicial branch to interpret the law and for the Crown to enforce the law. Our Charter “guarantees the rights and freedoms set out in it” for all Canadians, while the rights of Indigenous peoples are similarly “recognized and affirmed.”

In accordance with the Charter, Canadians have the “right to be secure against unreasonable search or seizure” and the “right not to be arbitrarily detained or imprisoned.” Thus far, the government response to the ongoing protests has been incredibly measured and restrained. As such, it is difficult to endorse the claim that “tactics wielded against” the protestors “violate not only international” law “but are also in tension with aspects of Canadian law.”

In short, Wet’suwet’en protestors and their allies are not alone. This is true in the social and political sense — as in there are many Canadians, myself included, that support, identify, or empathize with the cause.

It is also true, however, in the legal sense — as in the Wet’suwet’en protestors and their allies are part of a domestic and international legal framework that is designed to balance the interests of the many with the rights of the few. This may be a feature of “Canadian Eurocentric Law,” but it is also woven into the fabric of traditional Native American custom.

As a person of mixed European and Cherokee descent, I struggle with social and political considerations involving the past, present, and future relationship between European settlers and Indigenous American peoples.

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As a scholar, professor and former practitioner of international law, however, I reject the “legal” assertions espoused by the group of self-identified lawyers and legal scholars in support of the current Wet’suwet’en protests.

This is not meant to be a commentary on the social or political virtues of the current cause. If the law is going to be invoked to promote the protests, however, legal scholars and practitioners should not distort the law to support the cause. The Canadian public — all of us — deserves better.