How the Wet’suwet’en crisis could have played out differently

Amid escalating tensions and armed RCMP responses, leaders say Canada must abide by the ‘rule of law.’ But what about Indigenous law?

Freda Huson, a matriarch and chief of the Wet’suwet’en, puts charcoal on a supporter’s face at the Unist’ot’en camp in preparation for ceremony. Huson and supporters were awaiting arrest by the RCMP during the enforcement of a Coastal GasLink injunction. Photo: Amber Bracken / The Narwhal

Dozens of arrests. A week-long raid on Wet’suwet’en camps. Grainy videos of armed officers. Doors blocked at the B.C. legislature. Railways stalled across the country.

For a conflict that began in a remote place, the impacts of the Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLink pipeline are now reverberating across the nation.

As tensions flare and politicians seize on the moment to criticize their adversaries, one has to ask: was this escalation inevitable, or could it have been avoided?

Molly Wickham, or Sleydo, from the Cas Yex House of the Gidimt’en Clan of the Wet’suwet’en, said the escalation around Coastal GasLink “definitely” could have been avoided if the province adapted its decision-making processes to acknowledge and honour Indigenous law and legal customs.

“The province and the federal government have to come to the table and say ‘okay, this is how we are going to adapt our policies and our laws to include, or to adjust for, how you’re living your laws out on your land,” Wickham told The Narwhal on a phone call from Smithers.

“It’s not something we can come and negotiate. It’s something that they need to make space for.”

A 2018 decision released by federal court Justice Sébastien Grammond emphasized that Indigenous law does not exist in opposition to Canadian law, but is a part of it: “Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land.”

Indigenous law and ‘the rule of law’

While Premier John Horgan and Prime Minister Justin Trudeau have both responded to the crisis saying Canada must remain a country under “rule of law,” some critics say they are excluding Indigenous legal systems from the equation.

For Chief Nick XEMŦOLTW̱ Claxton of Tsawout First Nation, the persistent failure of colonial governments and project approval processes to incorporate Indigenous perspectives was also on display in the approval of the Trans Mountain pipeline.

Several First Nations argued the federal government failed to engage in good-faith consultations in the pipeline project’s review, but the Federal Court of Appeals struck down their legal challenge.

Claxton said the issue comes down to how Indigenous governance continues to be treated as secondary.

“It’s really that deeper, fundamental recognition and respect for Indigenous laws, Indigenous sovereignty, Indigenous nationhood that needs to happen. And [Wet’suwet’en] is just one example of that not happening,” he said.

Indigenous communities are often forced to fight expensive and protracted battles against major natural resource projects on their territories in the courts. In many cases, projects forge ahead while legal questions of Aboriginal rights and title are still being addressed.

A woman is arrested as police enforce Coastal GasLink’s injunction at Unist’ot’en Healing Centre near Houston, B.C. on Monday, February 10, 2020. Photo: Amber Bracken / The Narwhal

No ‘cookie cutter’ solution: lawyer

Lawyer Jack Woodward, well-known for drafting Section 35 which enshrines Indigenous rights in the Constitution, has represented numerous First Nations in landmark cases.

Although imperfect, Woodward said Canada’s courts have some of “the most extensive accommodation for Indigenous laws in the world.”

“It’s hard to criticize — we’re in its infancy,” he said. “But it’s as enlightened as you’re likely to get in democratically elected societies in the modern world.”

To Woodward, the Wet’suwet’en crisis could have been avoided had the new trial that the court called for after the 1997 Delgamuukw decision simply taken place to resolve unanswered questions.

In Delgamuukw, the Supreme Court of Canada recognized the Wet’suwet’en and Gitxsan Peoples had never surrendered their land or had their title extinguished. The decision recognized Aboriginal title, the right to actively manage the land and benefit economically from its use, but that such title must be proven in the courts. The decision also ruled Aboriginal title is a communally held right that the province does not have the power to extinguish.

But the Delgamuukw decision left some room for infringements on Indigenous title for industry — agriculture, forestry, mining, hydroelectric power and infrastructure — and general economic development if these infringements can be justified (it’s complicated).

These infringements must be justified through the courts, which has not happened for the Coastal GasLink project.

The court also did not rule on the question of self-government or where exactly the Wet’suwet’en and Gitxsan hold title.

“The appellants effectively argued on appeal, as they did at trial, that by virtue of their social and land tenure systems — consisting of Chief authority, Houses, feasts, crests, and totem poles — they acquired an absolute interest in the claimed territory, including ownership of and jurisdiction over the land,” ruled Chief Justice Antonio Lamer. “The problem with this approach is that it requires proof of governance and control as opposed to proof of general occupation of the affected land. Only the latter is the sine qua non of ‘Aboriginal title.’ “

Lamer said this “substantive defect” in the Chiefs’ arguments required a new trial, which the court welcomed but the Wet’suwet’en have yet to bring forward.

So while the Delgamuukw decision set precedent for recognizing title, other questions were left unanswered in terms of how provincial and federal policy might adapt.

But Woodward brings insight to the Wet’suwet’en situation from another, similar case: Tsilhqot’in Nation v. British Columbia.

That 2014 decision granted the Tsilhqot’in Nation title to 438,000 hectares of its traditional territory. It took the Tsilhqot’in a quarter century to see its legal challenge all the way through to the Supreme Court of Canada. Both the province of B.C. and the federal government fought against the claim.

While it was one of the longest and most expensive court cases in Canadian history, Woodward said since B.C. and Ottawa were ordered to pay their legal fees in the end, the case didn’t wind up costing the Tsilhqot’in.

Woodward said the provincial and federal governments face a “legal revolution” in their ongoing efforts to recognize and incorporate Indigenous governance. For him that makes conflict unsurprising, especially as communities wrestle with the uncomfortable legacy of the Indian Act and jurisdictional issues that can only be resolved internally — such as disagreement within Wet’suwet’en about who are the rightful hereditary chiefs.

Woodward said there is no “cookie cutter” solution going forward, since First Nation governance and customs vary.

He said some of the conflict in B.C. could be resolved if the province and federal government let go of their “urgency” to push forward Coastal GasLink, especially in light of decades-old questions of jurisdiction.

“The gas has been underground for tens of millions of years,” he said. “It could wait a year or two, and the government could offer assistance that has risen from decades of neglect.”

Supporters stand along a sign built across the Morice River bridge near the Unist’ot’en camp near the route of the Coastal GasLink pipeline, Feb. 8. Photo: Amber Bracken / The Narwhal

The B.C. government’s approval of LNG subsidies

MLA Adam SȾHENEP Olsen, the first W̱SÁNEĆ (Saanich) citizen to be elected to the B.C. legislative chamber, and the interim leader of the Green Party, also agrees the Wet’suwet’en conflict was avoidable.

“It is important that people understand that what we see across Canada and on the steps of our legislature was neither inevitable nor unavoidable,” he said to his colleagues in the house on Feb. 12.

Olsen said votes in the spring of 2019 to support the Income Tax Amendment Act, which provides tax breaks to LNG Canada, the project the Coastal GasLink pipeline is needed to feed, fuelled the Wet’suwet’en controversy.

“Every member of this chamber, with the exception of the B.C. Greens and our independent colleague [Andrew Weaver], voted to ignite the tragic situation that we face.”

Olsen, the only party leader to visit Wet’suwet’en territory this year, chastised his colleagues at the legislature after parliament opened Feb. 11 with a speech from the throne, written by the premier’s office but delivered by Lt.-Gov. Janet Austin.

The speech referenced steps towards “meaningful reconciliation” with Indigenous Peoples in B.C., including the passage of Bill 41 to implement the United Nations Declaration on the Rights of Indigenous Peoples.

Austin delivered these words as hundreds of members of the public gathered outside the legislature, supporting a group of Indigenous youth occupying the building’s steps for the previous days in support of Wet’suwet’en hereditary chiefs. The crowd blocked every entrance to the legislature, forcing the cancellation of a red carpet ceremony and gun salute traditionally conducted at the opening of a new session.

In a response speech the following day, Olsen accused the Liberals and NDP of choosing to “barrel ahead, knowing full well that there were existing long-standing and unresolved matters relating to rights and title in the area.”

“Honestly, what did you all expect?” he asked. “Did you really think that after decades of fighting for recognition, the Wet’suwet’en hereditary chiefs would just step aside and let you do whatever you want in their territory?”

“Every vote to prematurely proceed with this project backed the Wet’suwet’en hereditary chiefs into a corner.”

“I will not let them rewrite history to pretend that they are anything but responsible for the painful situation we are seeing playing right now in our landscape, leveraging Indigenous people against each other,” Olsen said.

Indigenous-led environmental assessments could ease tensions

Divides over natural resource projects could also be avoided by bringing Indigenous communities more thoughtfully into the environmental assessment process, where project impacts and environmental concerns can be discussed in the early stages of a project’s life, rather than post-approval or during construction.

Yet recent research found that environmental assessment policies in Canada have failed to adapt in the wake of important legal decisions like Delgamuukw and Tsilhqot’in.

A new study published by Laruen Eckert, Raincoast Conservation Fellow and PhD student at University of Victoria, Chief Claxton and co-authors found Indigenous knowledge has largely been left out of decision-making processes, even after the controversial Impact Assessment Act was passed by the Liberal government in 2019.

The authors analyzed the bill and related literature to see how it engages with Indigenous knowledge. Eckert said the law does mandate the inclusion of Indigenous knowledge but offered “few progressive changes” in how to execute that shift.

The paper concludes “top-down colonial environmental assessment processes” are “inherently at odds with equitable knowledge sharing.”

Eckert said while procedural changes, such as better funding and training opportunities for Indigenous participation in the assessment process, are within reach, the fundamental obstacles of shifting government to treat Indigenous knowledge as equal remains a daunting task.

“The deep-seated stuff is going to take a ton of political will and profound systemic change,” Eckert said.

The research also recommends more Indigenous-led environmental assessments.

Indeed, Tsawout First Nation carried out its own environmental assessment of Trans Mountain that included both data-driven and traditional knowledge. The Tsleil-Waututh First Nation also commissioned its own assessments on topics overlooked in the Trans Mountain like danger to southern resident killer whales, and the Federal Court of Appeals largely dismissed these studies.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the project would never be approved, and the applicants would have a de facto veto right over it,” ruled the court.

But as Claxton addressed the National Energy Board voicing Tsawout First Nation’s opposition to Trans Mountain, he framed things a different way.

“The fact that we, as Saanich, have to testify our concerns to the National Energy Board in a process that was imposed on us about our lands and waters that were literally stolen from us, just to ultimately allow the continued expansion of the colonial capitalistic empire … it seems to me like the colonial mission is still driving forward relentlessly,” he said at a hearing in Victoria in November 2018.

Claxton says changing assessment policies will give space for Indigenous worldviews and respect for non-humans relations like salmon and southern resident killer whales.

“First Nations leading their own environmental assessment processes is a tangible way the state can engage with Indigenous legal systems,” he said.

The Impact Assessment Agency of Canada told The Narwhal the new act includes considerations for Indigenous-led assessments and they are working with First Nations to create a policy framework to ensure consistency across project reviews.

For Wickham, the Wet’suwet’en are doing their part by living out their law on the land. For now, she says the province and the federal government lack the political will to acknowledge, formally and into law, that Indigenous title is not extinguished.

“It’s not going to be easy. It fundamentally challenges the whole system that Canada is based on,” she said. “But there are ways to do it. It’s time the governments put in the time and the efforts to make it work. They have to start somewhere, and this is the most appropriate place to start right now.”

SOURCE

 

Industry, government pushed to abolish Aboriginal title at issue in Wet’suwet’en stand-off, docs reveal

Documents obtained by The Narwhal reveal representatives of resource industries and government sought the ‘surrender’ of Indigenous land rights in the wake of the precedent-setting Delgamuukw decision, which affirmed Aboriginal title on unceded territory

An RMCP helicopter takes off after Unist’ot’en spokesperson and founder, Freda Huson, refused to negotiate surrender with the police on Feb. 8. Photo: Amber Bracken / The Narwhal

he B.C. government and corporate lobbyists representing major resource industries sought the “surrender” of First Nations land rights immediately following the Delgamuukw decision, a precedent-setting legal ruling that established Aboriginal title to unceded land, according to Freedom of Information (FOI) documents obtained by The Narwhal.

The records, from B.C.’s Ministry of Aboriginal Affairs, provide a glimpse for the first time of a corporate lobbying effort urging government to push First Nations to surrender their newly recognized title rights through modern treaties to achieve “certainty” for commercial interests.

Internal emails, memos and confidential briefing notes also show that, immediately after the Delgamuukw decision came down from the Supreme Court of Canada on Dec. 11, 1997, B.C. government officials discussed tactics to fight land rights with legal challenges, to curb direct action or litigation by First Nations and to use federal money intended for the healing of residential school survivors to make treaty negotiations more attractive.

The push for “certainty” for industry operating in B.C. remains a strong focus for government to this day.

The Delgamuukw decision — prompted by a case launched in the 1980s by Wet’suwet’en hereditary chiefs and the neighbouring Gitxsan Nation — cuts to the heart of the Wet’suwet’en nation’s on-going opposition to Coastal GasLink’s plan to build a 670-kilometre fracked gas pipeline through the nation’s traditional territory to LNG export facilities in Kitimat.

In the decision, Supreme Court justices declared that nations like the Wet’suwet’en, who had never signed treaties, still hold unceded rights to their lands.

A supporter at Unist’ot’en camp in Wet’suwet’en territory Jan. 15. Arrests of supporters at the camp are expected to take place Sunday, Feb. 9. Photo: Amber Bracken / The Narwhal

The threat of Aboriginal title

In early January Wet’suwet’en hereditary chiefs issued an eviction notice to Coastal GasLink after the B.C. Supreme court extended an injunction against members of the Wet’suwet’en and their supporters who are preventing the company from accessing contested work sites along the pipeline corridor near Houston, B.C. A year earlier, in January 2019, the RCMP enforced the injunction and arrested 14 people in a controversial move that drew international attention

Days after the eviction notice was served, Wet’suwet’en hereditary chiefs met with the B.C. RCMP’s commanding officer, deputy commissioner Jennifer Strachan.

Hoping to avert a repeat of last year’s much-criticized police action, Chief Hagwilnegh (Ron Mitchell) of the Wet’suwet’en’s Small Frog clan offered the deputy commissioner a piece of advice: consult the Delgamuukw decision.

“Read that, before you give out your orders,” he recalled telling her.

Although the Delgamuukw ruling happened almost 25 years ago it is still considered one of the most important rulings on Indigenous land rights in Canadian history.

For 150 years prior to the ruling, all levels of government insisted Aboriginal title had been extinguished and thus had no impact on decision-making.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today.”

The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that could grant Indigenous peoples exclusive occupation and require consent prior to resource development or other activities that could affect their territory.

The ruling sent shockwaves through the country, promising a transformation in Indigenous peoples’ rights to govern their ancestral territories.

Hagwilnegh, who worked as a translator for Elders testifying in court in their Wet’suwet’en language, remembered being hopeful that Aboriginal title would be reconciled with Crown title, as the federal Supreme Court judges had directed.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today,” he told The Narwhal.

But the government and resource companies had other ideas.

Freda Huson, centre, and her sister, Brenda Michell, stand in ceremony while they wait for police to enforce Coastal GasLink’s injunction. Photo: Amber Bracken / The Narwhal

‘The decision makes the need for certainty through surrender all the more clear’

In a committee formed by the B.C. NDP government of Glen Clark — to allow oil and gas, forestry, cattle, real estate and mining associations to offer advice about treaty negotiations — various lobbyists pushed the government to limit the consequences of the Supreme Court decision, according to the FOI documents.

According to one memo, detailing a meeting that took place one day after the Delgamuukw ruling, Marlie Beets, then vice-president of the BC Council of Forest Industries, remarked that she had spent the previous hour “trying to calm” the CEOs she represented.

“[Delgamuukw] has only created more uncertainty and we are very concerned by how governments will react to the court’s findings,” Beets said. “The decision makes the need for certainty through surrender all the more clear. We see no other alternative.”

A document released through Freedom of Information rules quotes Marlie Beets relaying the anxiety of CEOs with the BC Council of Forest Industries in response to the Delgamuukw decision. Beets notes the ruling makes the need for economic “certainty through surrender” of Aboriginal title “clear.”

Mike Hunter, then the president of the Fisheries Council of B.C., urged the government to “downplay the expectations that Aboriginal leaders have.”

Mary MacGregor, then director of the B.C. Cattlemen’s Association, promised that “we will be putting great pressure on the provincial government to commit to a cede, release and surrender approach.”

Several days later, a new Delgamuukw strategy team formed by the ministry noted in a memo that “the oil and gas industry in particular has expressed concern about their ability to continue to do business in the province absent a clear direction from the government on how it will address the implications of the Delgamuukw decision.”

The following spring, John Watson, then-regional B.C. director of the federal Ministry of Indian Affairs wrote in a letter that both provincial and federal governments “are under tremendous pressure to ensure that we achieve the level of certainty required to assure business and other third parties.”

Indigenous-led opposition to unwanted natural resource projects and infrastructure has been bolstered by decisions such as Delgamuukw, Haida Nation and Taku River Tlingit.

In B.C., as in Quebec, Yukon, the Northwest Territories and the Atlantic provinces, the vast proportion of land has never been subject to treaty. Although often referred to as public or Crown land, most of these areas are the unceded homelands of Indigenous nations.

These communities are increasingly laying legal claim to their territory through the courts. A 2014 decision, for instance, granted the Tsilhqot’in nation Aboriginal title to 438,000 hectares of its traditional territory. It took the Tsilhqot’in 25 years to win its legal challenge in the Supreme Court of Canada. The B.C. and federal government fought the title claim from start to finish.

Following the Delgamuukw decision, the federal Supreme Court indicated the Wet’suwet’en could make a similar legal claim to its 22,000 square kilometre territory. Notably, the judges urged the government to seek to reconcile Aboriginal title with Crown title through negotiations, in the spirit of what it called “the honour and good faith of the Crown.”

But the FOI documents show the priority for both B.C. and federal governments was to try to resolve the economic and legal uncertainty for resource industries seeking access to land and natural resources.

In a “certainty working group” meeting arranged by the B.C. Treaty Negotiations advisory committee, lawyer Chris Harvey warned that, post-Delgamuukw, “there is now uncertainty over whether the entire province is burdened by Aboriginal title.”

What should be sought through the treaty process, Harvey said, is “an end of Aboriginal rights and title.”

B.C. government officials, for their part, promised to accomplish this through the existing B.C. modern treaty process.

An excerpt of a fax sent on March 27, 1998, quoting lawyer Chris Harvey stating treaty rights are needed to bring about the ‘end of Aboriginal rights and title.’

‘Treaties offer the only long-term solution’

The treaty process, created in 1992, offered a way for the provincial government to forge agreements with First Nations that had never signed historic treaties.

The process drove a hard bargain for First Nations: they could relinquish rights to close to 95 per cent of their traditional territories — giving resource companies “certainty,” or uncontested access — in exchange for financial compensation and small parcels of land.

Nations like the Wet’suwet’en, which refused to enter the B.C. treaty process, were stone-walled, Hagwilnegh told The Narwhal.

“If we sat down to talk, it didn’t go anywhere. Meanwhile, government continued to hand out licences for all sorts of things — mining, clear-cut logging and, as we see today, pipelines.”

A Gitxan supporter works to start a truck at a Wet’suwet’en re-occupation camp on Jan. 13. Photo: Amber Bracken / The Narwhal

Following Delgamuukw’s recognition of Aboriginal title, many Indigenous advocates and lawyers argued Canada should stop requiring First Nations to extinguish their rights and instead seek out shared jurisdiction that would allow Indigenous nations to develop sustainable economies.

Indeed, the FOI documents show that in the wake of the ruling, officials at the B.C. Ministry of Aboriginal Affairs expressed fear that the “credibility of the treaty process is in question.”

But rather than shift its approach, the ministry deliberated how to accelerate negotiations and “[revamp] the treaty process to create faster certainty in the areas of lands and resources.”

The FOI documents include draft speaking notes prepared for then-B.C. Minister of Aboriginal Affairs John Cashore in advance of a public forum with First Nations in late 1998.

The notes show Cashore’s prepared lines, which state, “there is no doubt that Delgamuukw also signals a need for a change in the way we do business.”

“The decision confirmed we are on the right track by negotiating instead of litigating,” the bullet-point speaking notes state. “We still believe that treaties offer the only long-term solution to gaining certainty around Aboriginal title and Aboriginal rights.”

But in private, government bureaucrats discussed several hardball tactics, including litigation, the FOI documents reveal.

The bureaucrats proposed the idea of signing “interim agreements” with First Nations that would have them “agree to support economic stability in British Columbia by refraining from direct action or litigation,” without which negotiations would not proceed.

“Make sure we take advantage of potential litigation and maybe even initiate where we feel it could help us,” Doug Caul, then-director of Aboriginal affairs at the B.C. Ministry of Forests, suggested as a possible tactic in an email exchange with colleagues from different provincial ministries.

Caul also noted the province could strike back with a court challenge: “This will be controversial, but it seems likely that Delgamuukw will spawn more litigation,” he said. “Future litigation could help [d]efine the scope of title.”

“I am not suggesting we pick a fight,” Caul wrote on Dec. 17, 1997, less than one week after the Delgamuukw decision, “but that we make sure we take advantage of potential litigation and may be (sic) even initiate where we feel it it (sic) could help us, instead of waiting and reacting.”

An excerpt from an email written by Doug Caul less than one week after the Delgamuukw decision, suggesting government “take advantage of potential litigation” to limit the scope of the ruling’s significance for title rights.

Today, Caul is the deputy minister of B.C.’s Ministry of Indigenous Relations and Reconciliation, responsible for overseeing Bill 41, B.C.’s new legislation contending with the United Nations Declaration on the Rights of Indigenous Peoples.

Escalating government tactics to ‘sweeten the deal’

In a memo to the B.C. Ministry of Aboriginal Affairs, provincial treaty negotiators suggested using federal funds intended for the healing of residential school survivors to advance treaty negotiations.

As part of the federal response to the Royal Commission on Aboriginal Peoples, the Liberal government of Jean Chretien had established the Aboriginal Healing Foundation with a $350 million dollar grant in 1998.

In order to “sweeten the deal” offered by the B.C. treaty process, B.C. negotiators suggested asking the federal government to prioritize healing money for First Nations who engaged in treaty negotiations.

Internal documents from B.C. treaty negotiators recommending healing funds for residential school survivors be used to “sweeten the deal” of modern treaties.

“Were the federal government to be strategic in how this money were spent in British Columbia, then they would prioritize those First Nations with which they are having treaty negotiations as the major beneficiaries of this program,” the treaty negotiators wrote. “In addition, the money could be made available as a ‘down payment’ on an eventual treaty and given credit accordingly.”

It is unclear whether the federal government ever acted or received a request to act on this idea.

The documents also show the provincial government monitored the activities of First Nations in B.C.’s interior who were critical of the treaty process. When the Union of B.C. Indian Chiefs marched in downtown Vancouver on the first year anniversary of Delgamuukw, officials prepared media lines to highlight how they had “moved forward on a number of fronts.”

Documents reveal that upon the one-year anniversary of the Delgamuukw decision, government officials considered “monitoring blockades” a priority action. The documents also note a strategic priority to ensure the Ministry of Aboriginal Affairs update the Ministry of the Attorney General and the RCMP on “affected regions.”

The ‘surrender approach’ continues

UBC Indigenous legal scholar Gordon Christie called the FOI documents “illuminating.”

“It confirms what has been common knowledge in Indigenous circles — that the approach that emerged out of these discussions has been pursued by both provincial and federal governments for decades,” Christie said.

Mohawk policy analyst Russell Diabo, who was working with interior B.C. First Nations when the Delgamuukw decision came down, said the “continuities are clear” over the decades.

“The governments have shown their main aim remains keeping powerful business interests happy and containing the power of Aboriginal rights and title, rather than moving toward a respectful relationship.”

United Nations bodies have repeatedly criticized the Canadian government for trying to dress up old policies that have been rejected by First Nations.

The UN Committee on Economic, Social and Cultural Rights noted in 2006 it “remains concerned that the new approaches, namely the ‘modified rights model’ and the ‘non-assertion model,’ do not differ much from the extinguishment and surrender approach.”

Despite the enormous effort by the B.C. government, treaty negotiations have resulted in only eight modern treaties that “modify” or “surrender” their Aboriginal title.

The Trudeau and Horgan governments have introduced an array of new policy mechanisms and “reconciliation” agreements, but Hagwilnegh said they promote essentially the same end result and remain unacceptable to the Wet’suwet’en.

“The government never likes it when we bring up Delgamuukw,” he said. “They clam up. And on those occasions when we have been able to educate government officials, the next day, poof, we get new officials sent to us.”

When contacted by The Narwhal, instead of answering questions the Ministry of Indigenous Relations and Reconciliation referred to a press release stating it is “basing negotiations on the recognition and continuation of rights without those rights being modified, surrendered or extinguished when a treaty is signed.”

An imitation flag that reads “reconciliation is dead” burns on a funeral pyre as a small envoy of police arrive at Unist’ot’en Healing Centre on Saturday, Feb 8. Photo: Amber Bracken / The Narwhal

“The new policy will enable flexible, innovative and collaborative approaches that improve how treaties are reached in B.C.,” the release said.

Diabo said the modern approach bears an uncomfortable resemblance to older methods. “Though the B.C. and federal government never tires of varnishing their approach to convince us that it’s brand sparkling new, their end-game remains to extract surrender of Aboriginal title to Crown sovereignty,” he told The Narwhal.

In the years since Delgamuukw, some First Nations have chosen further litigation or direct action to uphold the rights recognized in the ruling.

Diabo noted the response from the government has often been criminalization, pointing to the arrest of Wet’suwet’en land defenders in January 2019 as the latest in a line of policing actions taken against Indigenous peoples across Canada.

“The police lay down the law — or what they think the law is,” said Hagwilnegh, who has educated Wet’suwet’en youth about the meaning of the Delgamuukw court decision and worked with community members to map creeks, forests and hills across the nation’s traditional territory.

“But Delgamuukw was brought down by the Supreme Court, the highest court of Canada.”

Police make an arrest January 2019 while enforcing the injunction filed by Coastal GasLink at the Gidimt’en checkpoint. Photo: Amber Bracken

Over the past several weeks, Hagwilnegh, acting as the police liaison for the hereditary chiefs, said he has continued to speak on the phone with RCMP deputy commissioner Strachan, whom the B.C. RCMP declined to make available for comment.

Hagwilnegh said Strachan took his advice and read up on Delgamuukw and he thinks she has listened more than the former commissioner, who oversaw the raid on Wet’suwet’en territory last year.

“But after our Elders told the world who we are and how we look after the land, as caretakers of the territory, is that the best the government can do?” Hagwilnegh asked. “It is long past time they respect their own laws.” SOURCE

 

Horgan’s Pipeline Push Betrays His Reconciliation Promise

‘Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?’ Photo by Michael Toledano.

It’s the same old story Indigenous Peoples have heard for generations.

B.C. Premier John Horgan tells the public “the rule of law” demands the Coastal GasLink pipeline go ahead. Permits are in place, and the courts have approved construction.

The opposition of Wet’suwet’en hereditary chiefs is not important to Horgan, as he points to 20 First Nations that have signed agreements to allow the pipeline and negotiated benefits. The five clans who have not agreed don’t seem to count.

Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?

Are we not in a new era of reconciliation? A new decade? The decade of the enactment of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act in this province?

What would I expect from the premier in this new era, in this particular situation when he needs credibility with First Nations if his commitment to UNDRIP is to be taken seriously?

I would expect the premier to look back on past decisions and ensure they were made in the spirit of UNDRIP — including approval of the Coastal GasLink pipeline. His party was making political promises to uphold UNDRIP long before the NDP were in government.

In the 2014 Supreme Court of Canada Tsilhqot’in decision, the justices stated clearly that provincial and federal governments need to be prepared to cancel already approved projects if First Nations establish title to the land and oppose them.

“Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward,” the judgment says. “For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” (Emphasis added.)

The court also sets out the correct path for governments.

“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

Horgan should heed the advice of the Supreme Court of Canada and revisit the decision to proceed with the pipeline, especially in light of his commitments to resolve land titles, implement UNDRIP and advance reconciliation. The court advised getting the consent of Indigenous people; that’s what he should do.

The right to self-determination

Furthermore, UNDRIP is very clear that all Indigenous Peoples have the right to self-determination. Self-determination means that Indigenous Peoples will freely determine their own political status. That means governments and companies cannot decide which is the right governing body for a nation. That is a matter for Indigenous Peoples.

The Indian Act imposed a system of government on First Nations, attempting to dismantle a governance system that had functioned for centuries. It made chiefs and councils the owners of the land and gave them total power.

But traditional government systems have not been eradicated.

Wet’suwet’en hereditary chiefs are opposing the pipeline, and some are questioning their legitimacy.

But the 1997 Delgamuukw decision, which transformed the way Indigenous land title is considered, wasn’t brought by Indian Act elected chiefs and councils.*

Wet’suwet’en hereditary chiefs launched the lawsuit and took the issue to the Supreme Court of Canada.

Surely this should indicate to the government and companies who has title and rights to the land. And surely, they should recognize that it is up to the Indigenous people to determine this, not the provincial government. Clearly the hereditary chiefs must be part of this decision on whether the pipeline proceeds.

Free, prior and informed consent

Free, prior and informed consent has been and will continue to be an issue in relation to UNDRIP, because governments and Indigenous people do not agree on its meaning.

Horgan’s government has said it was waiting for the UNDRIP legislation to pass before working to reach agreement about what free, prior and informed consent means. He has not tried to work this out with First Nations in advance, even though that would have been prudent.

We have heard Horgan and Minister of Indigenous Relations Scott Fraser say that the requirement for free, prior and informed consent does not give First Nations a veto over projects in their territories.

Then what is consent under UNDRIP? Is it a simple yes or no? Does it give a veto because no means no? These are good questions that must be answered by Indigenous Peoples and governments.

The Wet’suwet’en hereditary chiefs are saying no. No consent. No project. No access. Not on their lands.

In criminal law, a woman can say no to a man and no means no. If he proceeds against her wishes, he can be guilty of a crime. Why doesn’t the requirement for free, prior and informed consent give the same right to Indigenous Peoples?

So what does consent mean to this B.C. government? That they have the final say? That they can decide no does not mean no. That the status quo continues when it comes to development?

That would not reflect a new era of reconciliation, or the principles of UNDRIP. That would be the Crown asserting jurisdiction over First Nations laws and title once again.

Sending in the RCMP to remove protesters is also the same old story — a show of force against defenders of the land who are not armed, who are elders, youth and chiefs. RCMP assert their power under a court order that hasn’t taken into account Indigenous laws.

This pipeline dispute is not new. It has been ongoing for years. That it has not been resolved speaks volumes about the unwillingness of this government to sit down at a table with the hereditary chiefs and talk about why they are opposed and try and resolve differences.

If we are in the era of reconciliation, there needs to be more efforts to come to agreements. If agreements cannot be reached, there needs to be impartial tribunals established to help find those solutions. And if no solutions are found, then there is no project.

If the principles of UNDRIP are being implemented and being placed into laws, the government has to start respecting its provisions now.

For instance, Article 18 gives the Wet’suwet’en the right to participate in any decision-making through their own procedures and law. This has not happened.

Article 26 gives them the right to own, use, develop and control the lands, territories and resources they possess through ownership, and says the state must give legal recognition and protect their lands and resources. None of this has occurred to date, and it doesn’t look like B.C. is even considering it. The government is saying this is Crown land, the company has Crown permits, so therefore the development must happen.

Article 25 gives the Wet’suwet’en the right to strengthen their spiritual relationship with the land, waters and resources in their territories. But if their territory is destroyed for a pipeline, their relationship with their land will also be destroyed.

Article 29 gives them the right to the productive capacity of their territories, and a pipeline does not allow for this.

There are many more articles on implementing laws and protecting sacred and cultural sites that B.C. is violating by continuing with the pipeline project over Wet’suwet’en objections.

These statements by Horgan set back the ambitious, positive agenda set by his government in implementing UNDRIP. They signal to First Nations’ people in B.C. that the government is not serious about the new law.

And they strongly signal trouble ahead as B.C. continues with its status quo agenda that claims government has final say over developments on First Nation title lands, and the requirement for free, prior and informed consent will not be taken seriously.

Many First Nations peoples in this province are hearing Horgan and asking what has changed?

The answer is nothing. B.C. is moving ahead with the government’s economic agenda at the expense of First Nations rights, title and all the requirements set out in the United Nations Declaration on the Rights of Indigenous Peoples.

First Nations people thought we were throwing out the old book and beginning a new one. Sadly, it looks like the same old story. This is not the new decade we were looking for. SOURCE

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