Editorial: To avoid blockades in the future, stop the waffling

Protesters block the Johnson Street Bridge on Feb. 8. They said they were acting in support of Wet’suwet’en hereditary chiefs who oppose construction of a natural gas pipeline in northern B.C. Photograph By DARREN STONE, TIMES COLONIST

With the Wet’suwet’en protests now largely behind us, for the time being at least, there is an urgent need for a serious discussion about how such matters should be handled in future. It seems quite likely there will be more to come.

We say that partly because when police forces stand aside and allow roads and rail lines to be blocked, it emboldens protesters to ramp up such tactics. But it is also a reality that our governments, provincial and federal, have communicated a sense of unwillingness to become actively involved.

The starting point for any such discussion should be how much is due to Aboriginal groups when resource projects are being planned. The Supreme Court of Canada has said that consultation is obligatory, and that it must be meaningful, not cursory or perfunctory.

But the court has also ruled that First Nations do not have a veto over such projects. That is to say, while they must be heard in a respectful manner, and every effort made to mitigate whatever concerns are raised, their consent is not constitutionally required.

However, in a commentary on this page two weeks ago, a First Nations negotiator wrote that consultation is no longer by itself deemed adequate or sufficient. Consent is now a necessity if there is to be genuine reconciliation.

It is essential that our political leaders make clear where they stand on this. There are 198 First Nations in B.C., and 634 nationwide. If consent, rather than consultation, is to become the ruling principle, that must be said.

In our view, this policy would be tantamount to hanging a “going out of business” sign at the border. What is the likelihood that foreign resource companies will invest in Canada if such a labyrinthine approval process were adopted? Recently, American billionaire Warren Buffett pulled out of a liquid natural gas pipeline project in Quebec, citing “the current Canadian political context.” But what cannot be allowed to happen is continuing confusion as to what the rules are. That merely invites further blockades as protesters test the will and resolve of governments to call a halt.

There is a precedent here. In 1990 an armed standoff between police and members of the Mohawk First Nation in Oka, Ont., led to a police officer being killed. Ownership of land was at stake.

Two factors played a part in this tragedy. First, law-enforcement agencies, seeking to avoid a confrontation, stood aside in the early stages. But that merely allowed the situation to reach a boiling point.

Second, some of the protest leaders began believing their own rhetoric, which became increasingly violent as things dragged on for 78 days. Arguably, had police taken a firm stance earlier, this might not have happened.

There is also a necessity for leaders within the Aboriginal community to talk this matter through. Some of that is already happening.

For First Nations groups cannot complain about high levels of unemployment on remote reserves, with the accompanying dysfunction that causes, if some remain adamantly opposed to projects that can bring jobs to their region.

We understand the sensitivities involved. Numerous land title claims have gone unresolved for decades. Impatience and distrust are entirely reasonable given this fact.

But by slamming the door on resource projects, Aboriginal leaders are not only depriving their own people of much needed work. They are undermining the Canadian economy upon which we all ultimately depend for services such as health care and education. There is no future in that.

First and foremost however, Parliament and provincial legislators must stop waffling and make clear how future blockades will be dealt with. Until that happens, there is an open invitation for more of the same. SOURCE

What will it take to end blockades? Indigenous community members warn deal may not be enough

WATCH: On rail blockades, Trudeau says it’s ‘never appropriate’ to deploy military against Canadian citizens.

Members of Canada’s Indigenous communities are warning that a new deal reached by the federal government and Wet’suwet’en hereditary chiefs may not be enough to end rail blockades that have disrupted the country’s economy.

The deal is meant to put an end to protests that have spilled out across the country in solidarity with the Wet’suwet’en hereditary chiefs, who oppose the 670-kilometre Coastal Gaslink pipeline from northeastern B.C. to Kitimat that is expected to be built through their unceded territory.

The proposal, which has yet to be formally agreed upon by the hereditary chiefs, is said to address broader land claims, rights and titles.

READ MORE: ‘We support them’: Kahnawake railway blockade continues despite tentative deal in B.C.

But even if the agreement is ratified, Lee Maracle, a lecturer at the University of Toronto’s Centre for Indigenous Studies, said, “It’s not really up to what happens with the Wet’suwet’en and the government” whether the blockades come down. “It depends on the people making the blockades.”

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Maracle, who is also an award-winning First Nations fiction author, said the blockades have become about more than just a pipeline. She said different people are manning the blockades for different reasons.

“Some of the blockades are because people don’t want pipelines, period. And some of them are in support of Wet’suwet’en having some say in what happens in their territory,” Maracle explained.

1:18Protesters set up new rail blockade in Montreal

“If they have decided that they’re going to keep the blockades up in opposition to pipelines, then whatever the Nation decided with the government may be affected.”

Tensions between the Canadian government and Indigenous Peoples have been mounting for decades, with Prime Minister Justin Trudeau being accused of not taking reconciliation seriously and criticized for ignoring the plight of the First Nation until it reached its boiling point.

According to Maracle, the turmoil felt by Canadians affected by the blockades is happening because its government “refused to have a conversation” and undergo what she described as “legally required” consultation.

“The turmoil has always been right there, except we’re the only ones who are enduring it. Indigenous people are the ones that are enduring being ignored, enduring not being able to have a conversation with the government when they know very well that they’re supposed to consult us, and we’ve endured several governments that have not been willing to [help],” she said.

READ MORE: Indigenous people in Canada facing racism over Wet’suwet’en solidarity blockade action

“We’ve endured a lot of turmoil. Canada’s now sharing in the turmoil. That’s what’s happening.”

Coastal GasLink maintained they had the support of 20 elected band council members along the pipeline’s construction route, but the Wet’suwet’en hereditary chiefs, who also lay claim to their ancestral territory, were not consulted.

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Prior to the finalized agreement proposal, Crown-Indigenous Relations Minister Carolyn Bennett said she hoped it would serve as the “beginning” in a new relationship between government and Indigenous peoples.

She said the agreement could lead to a new consultation process where “at the very first idea of a project, the rights holders would be there at the table with their Indigenous knowledge and the voices of their nations.”

Crown-Indigenous Relations and Northern Affairs Canada said in a statement to Global News that they were working “around the clock” to resolve the issue in a “peaceful and lasting way.”

1:22Blockades in Kahnawake continue despite agreement

This arrangement, they said, will breathe life into the Delgamuukw-Gisday’wa decision — the first comprehensive account of Aboriginal title in Canada — “so that future generations do not have to face conflicts like the one they face today.”

“While work remains, these talks have been an important step on reconciling complex matters of rights and title. We understand that we are at a critical time, and we need to begin to build a new path together,” they said.

But when it comes to the proposed deal, Andrew Brant of Tyendinaga Mohawk Territory said “actions speak louder than words.”

Brant, who works as a teacher and is an active participant in the blockades, would not give a definitive answer on what exactly would be enough for him to end the blockades, but he said that a good first step would be for the government to redefine reconciliation and “come clean” about how much the government has hurt Indigenous communities over the years.

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“The truth is the treaty has been broken and it’s been broken for a long time,” he said, referring to the Numbered Treaties, which were signed between 1871 and 1921 and outlined Indigenous land ownership.

READ MORE: Indigenous land conflicts to persist unless sovereignty addressed, Wilson-Raybould says

Brant said he would like to see the government own up to what he called a past “genocide” against Indigenous Peoples and for the disproportionate violence against First Nations men, women and children to come to an end.

“They’re spending more resources and time fighting us than they are trying to help us, we’re treated as subhuman,” he said.

“They need to take some action that’s peaceful, non-forceful — because you can’t force people to negotiate, you sit down and negotiate as equals.”

When asked if there was anything the government could do to end the blockades quickly, he said only time would tell.

“Our lives have been blockaded for over 500 years. So I think a few days, weeks, years of trying to negotiate something, sit down and come to a peaceful resolution is not much to ask,” he said.

“We respect them and we want us to continue living together, but we want to have an equal voice.”  SOURCE

Ottawa’s offer to recognize Wet’suwet’en land rights could be a game-changer for Canada. Here’s how

OTTAWA—Who owns the land, really?

That question is at the centre of the dispute over the Coastal GasLink pipeline: the Wet’suwet’en hereditary chiefs say it can’t pass through the nation’s territory without their permission, but Canada’s legal framework does not acknowledge Wet’suwet’en ownership of the territory they claim.

At least not yet.

On Sunday, ministers from the British Columbia and federal governments stood with a Wet’suwet’en hereditary chief to hail a “milestone” proposal to recognize the nation’s “title.”

The government has long said an important element of its reconciliation agenda is the recognition of land rights and title for all Indigenous nations that wish to pursue them.

But what does that actually mean for the relationship between First Nations and the Crown? And how might it reshape how decisions are made — on resource development and other issues — across Canada?

What, in other words, are we talking about when we talk about “Aboriginal title?”

So, what does it mean to recognize “Aboriginal title?”

“You’re just returning or recognizing what’s already theirs,” said John Borrows, Canada research chair in Indigenous law at the University of Victoria.

For millennia, Indigenous nations governed, traded, hunted, fought and travelled throughout the territory that is now called Canada. Then European colonizers arrived and declared themselves sovereign. Sometimes there were treaties to formalize this claim — in which Indigenous peoples formally ceded territory — but oftentimes the colonizers simply considered the land open for settlement.

Just because the Crown asserted sovereignty, however, didn’t mean it was necessarily so. According to Borrows, the courts have found that Indigenous land rights “survived the assertion of sovereignty,” and have not been subsequently wiped out by provincial or federal laws.

The Crown’s claim over large tracts of land in places like B.C. has been chipped away by a series of court cases that have gradually ruled Indigenous claims to the same land are not inferior to claims from the settler government, Borrows said.

Those cases includes the landmark Tsilhqot’in decision in 2014, in which the Supreme Court of Canada affirmed a B.C. Indigenous nation’s “Aboriginal title” for the first time. “The idea here is that (title) is a pre-existing right that has not been extinguished,” Borrows said.

Does recognizing “Aboriginal title” make land into private property?

No.

Borrows explained that courts have outlined how Aboriginal title has an “inherent limit.” Because it refers to land that is owned collectively by an Indigenous nation, rather than individually, “you have to preserve that land for future generations,” he said. “You can’t sever the historic relationship with the land.”

Eugene Kung, a staff lawyer with West Coast Environmental Law, added that Aboriginal title land can only be transferred to the government — not to individuals or a corporation.

Otherwise, the concept of Aboriginal title — which is enshrined in Section 35 of the Constitution — is very much like the popular conception of private property, said Robert Janes, principal at JFK Law in Victoria, B.C. SOURCE

GAIL LETHBRIDGE: Reconciliation — Trudeau uttered the word, but didn’t do the work

Bruce MacKinnon’s editorial cartoon for Feb. 21, 2020.

Like you, I’ve been watching the protest blockades this week and feeling more and more annoyed.

But strangely, I wasn’t sure who or what exactly was getting my goat.

Was it the RCMP for occupying unceded First Nations lands in British Columbia?

Not exactly.

Was it the First Nations hereditary chiefs for demanding the RCMP get off their land so they could have a say on who puts gas pipelines there?

Not really.

Is it the protesters thousands of miles away who were strangling a nation’s transportation grid by blocking trains in solidarity with the hereditary chiefs?

A bit, yes, but that wasn’t the thing that was bugging me the most.

And then it occurred to me. Do you know who was really making me angry? Prime Minister Justin Trudeau.

It’s not just that he spent the first days of this protest swanning around in Africa putting on the diplomatic charm offensive to get Canada a seat on the United Nations Security Council.

That didn’t help, but it’s more than that.

And it’s not just the question of whether he did or didn’t enforce court injunctions to end blockades.

What’s bothering me is that he should have seen this whole train wreck coming a mile away. It was a locomotive steaming down the tracks towards us.

We’ve heard Trudeau talk about his commitment to Aboriginal issues and how reconciliation is the most important issue of his prime ministership.

Great.

So how could he let something like this happen? And then let it ratchet up to the point it has?

He should have been talking with Aboriginal communities on pipeline routes, negotiating and figuring out how he was going to combine reconciliation with running the country.

If there was going to be a problem — and there obviously was — he should have been anticipating it right from the word “go” when he came into office with an agenda of reconciliation.

These hereditary chiefs in B.C. are not just making this stuff up. They have a 1997 Supreme Court of Canada decision to back up their claims. If there is no treaty, the land is unceded. They have to be consulted about what happens on their lands.

Even if the elected chiefs and some other hereditary chiefs are in favour of this particular pipeline because it will produce jobs and prosperity, there are important constitutional principles at stake.

And now people are losing their jobs because we can’t get exports out or imports in. Container lines are diverting cargo to other ports.

Propane rations are hammering made-in-Nova-Scotia businesses like Acadian Seaplants. How are we going to get the cars out of the autoport, Michelin tires sent out to markets and P.E.I. frozen french fries exported?

And then we end up with fingers being pointed in all directions, accusations being made, jobs being lost, First Nations communities being divided and an economy held at ransom to this whole mess.

Is this really the prime minister’s vision of reconciliation?

I doubt it, but here we are.

Reconciliation is not just a word. It’s a historic challenge that required the prime minister himself to get out to those unceded lands a long time ago, roll up his sleeves, sit around the coffee table all day and all night and work things out with his Aboriginal partners in reconciliation — before something like this happened.

But he didn’t. And even if he gets the trains rolling this time, this thing isn’t over. It will happen again in one way or another because Trudeau didn’t do his homework. SOURCE

TAKE ACTION! ALL EYES ON WET’SUWET’EN

All eyes are watching as the Royal Canadian Mounted Police (RCMP) began their invasion on unceded Wet’suwet’en territory.  We wanted to provide the map above along with a brief update from our Wet’suwet’en relatives so you can better understand the lay of the land in the fight against TC Energy’s Coastal GasLink pipeline being forced on the homelands of the Wet’suwet’en. Keep scrolling after updates for ways to take action.

Background:

January 5th, 2020 Wet’suwet’en Hereditary Chiefs representing all five clans of the Wet’suwet’en Nation evicted Coastal GasLink (CGL) from their territories. CGL does not have consent to construct their $6.6 billion fracked gas pipeline. CGL is trying to push through their project on unceded Indigenous territories.

“Under ‘Anuc niwh’it’en (Wet’suwet’en law) all five clans of the Wet’suwet’en have unanimously opposed all pipeline proposals and have not provided free, prior, and informed consent to Coastal Gaslink/TransCanada to do work on Wet’suwet’en lands.” The Royal Canadian Mountain Police are invading the land to clear it of Indigenous land defenders and their supporters so that CGL can continue work. Hereditary Chief Dsta’hyl (Liksamisu Clan) said, “wet’suwet’en will enforce the eviction of Coastal Gaslink with any means at their disposal.”

RCMP spent $3.6 million in the first three months they invaded Wet’suwet’en territory. They’ve now been here for 13 months. How many millions of dollars has RCMP spent finding our Murdered and Missing Indigenous Women, Girls and Two Spirits? The connection to our MMIWG2S epidemic and pipeline industrial man camps is well know. We know that with violence to Indigenous lands comes violence to Indigenous peoples.

+ + + +

Day Three, February 8th, 2020 :

Unist’ot’en Camp 66km

RCMP has made it the gates of the Unist’ot’en Camp at 66km. Unist’ot’en matriarchs went into ceremony to call on ancestors and cremated a Canadian flag marked with the words “Reconciliation is dead.” Freda Huson threw the injunction and shouted “this is all its worth, the paper its written on.” RCMP helicopters have retreated for now.

1:28 pm – 4 arrests reported at 27km, Gisdewe cabin. Media being held back from accurately reporting the invasion for the third day in the row.

+ + + +

Day two, February 7th, 2020
Gidimt’en Checkpoint 44 km

Dozens of RCMP officers breached the gates here, four waves of helicopters dropped off tactical officers to surround the homesite with assault rifles and police dogs. The four land defenders arrested during the Gidimt’en invasion are still in custody. They have refused to sign conditions of release that will prohibit them from visiting homesites on unceded Wet’suwet’en territory. Among those arrested are Gidimt’en Chief Woos’ daughter Eve Saint, Anne Spice of the tlingit nation, Denzel Sutherland-Wilson of the Gitxsan nation, and a Mohawk supporter.

+ + + +

Day One, February 6, 2020
Media Camp Invasion 27 km

Dozens of militarized police with assault rifles and dogs have been deployed against unarmed Wet’suwet’en land defenders on unceded Indigenous land. At least 100 police are part of the operation. Six arrests were made, while two Wet’suwet’en home sites remain in the path of police violence, including the Unist’ot’en Healing Center founded in 2015.

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You can donate to legal defense/support funds here:

Gidimt’en: https://bit.ly/389LIoo

Unist’ot’en: https://bit.ly/2SnIiYy

Likht’samisyu: https://bit.ly/388m3wu

To follow the events of the invasion: 

https://www.facebook.com/unistoten/

https://www.facebook.com/wetsuwetenstrong/

On twitter @UnistotenCamp

Hashtags for Social Media: 

#LANDBACK

#WETSUWETENSTRONG

#SHUTDOWNCANADA

Download the Wet’suwet’en Supporter Toolkit 2020 here:

http://unistoten.camp/supportertoolkit2020/

Hold a solidarity action

Find A Solidarity Action Near You:

https://www.facebook.com/events/221856442184296/

Watch this video of Freda Huson, Healing Center founder, giving an update 31 days after the eviction:

https://www.facebook.com/watch/?v=2640066699441798

Video of heavily militarized police invading #Wetsuweten territories:

https://www.facebook.com/watch/?v=522458818374962

More Video militarized police with assault rifles and dogs have been deployed against unarmed Wet’suwet’en land defenders:

https://www.facebook.com/unistoten/posts/3465180653556155?__tn__=-R

_________________________________________

Contact the British Columbian Government here:

Premier John Horgan
1.250.387.1715

Minister of Indigenous Relations and “Reconciliation” Scott Fraser
1.250.953.4844

Attorney General David Eby
1.250.387.2178

Minister of Public Safety Mike Farnworth
1.250.356.2178

Minister of Forest Lands and Natural Resources Operations and Rural Development and MLA for Stikine-Wet’suwet’en Territory Doug Donaldson
1.250.387.6240

Contact CGL Operator TC Energy (Formerly TransCanada):

Corporate Head Office
450 – 1 Street S.W. Calgary, AB
Canada, T2P 5H1
1-403-920-2000

Corporate Head Office
700 Louisiana St,
Houston, TX 77002
Phone: (832.320.5000

Contact CGL Operator KKR :

NEW YORK
9 West 57th Street
Suite 4200
New York, New York 10019
+ 1 (212) 750-8300

HOUSTON

600 Travis Street
Suite 7200
Houston, Texas 77002
+ 1 (713) 343-5142

MENLO PARK

MENLO PARK
2800 Sand Hill Road
Suite 200
Menlo Park, California 94025
+ 1 (650) 233-6560

Do not look away as Indigenous peoples are being pushed off their land. Reconciliation isn’t violence against Indigenous peoples.

SOURCE

Wet’suwet’en Raids: Canada Chooses Colonialism Again

A future of reconciliation is now squandered along with our billions propping up LNG.

Protecting extraction, once again: The scene last year as heavily armed RCMP officers shut down Indigenous checkpoints blocking a natural gas pipeline on Wet’suwet’en land. Photo by Michael Toledano.

It is the job of thinking people not to be on the side of the executioners.
— Albert Camus

On Thursday, the RCMP and the Canadian state came to a moral crossroads on a snowy country road and looked briefly down a pathway to reconciliation. Then it said, “Fuck It.”

A highly militarized police presence once again used force against Wet’suwet’en protestors blocking the construction of a $6.6-billion methane pipeline needed to feed a grossly uneconomic $40-billion liquefied natural gas project.

In so doing the police made a mockery of the United Nations Declaration on the Rights of Indigenous Peoples.

It is not a complicated document. As criminologist Jeff Monaghan notes, the declaration expects “that conflicts like this will not be resolved violently or militarily but with negotiated solutions. The document directs us to do peaceful negotiated solutions that respect everyone’s rights, and equally.”

That didn’t happen.

As reliable agents of the Canadian state and defenders of resource extraction, the RCMP let it be known that the Trudeau government puts highly subsidized methane projects ahead of reconciliation and UN declarations.

Let’s be clear: in Canada, low-priced natural gas matters more than unresolved land claims.

By implication the government also told the nation that it puts uneconomic LNG projects ahead of climate change, given that serious methane leaks from the shale gas industry are now accelerating that chaos.

It, too, advances LNG ahead of the destruction of the arable lands and First Nations treaty rights in Peace River.

In that precious part of B.C., the shale gas industry continues to frack, industrialize and fragment that landscape with impunity, because only rural people live there, after all.

The hereditary chiefs of the Wet’suwet’en Nation are not asking for much: they want Indigenous rights and title respected and acknowledged by the B.C. and Canadian governments.

The chiefs tried to negotiate with the B.C. government over the recent enforcement of a court injunction but got nowhere with Premier John Horgan.

The recent negotiations predictably failed for an obvious reason: the B.C. government has become a salesman for LNG at home and abroad.

The shale gas industry has secured better representation in the B.C. government than ordinary citizens who actually pay taxes.

But what about the 20 First Nations that have signed on to the project, you might ask?

Yes, they signed and the negotiations were colonial. It was sign or get nothing. Many nations signed under severe constraints. Nor were they presented with economic alternatives.

As legal scholar and expert in Indigenous rights Dayna Scott has noted, Indigenous leaders are faced with a “false choice. They’re being asked to choose whether or not they want to sign a deal and get some benefits for their people for a pipeline that’s going to go through whether or not they agree to it.”

Now consider the position of Hereditary Chief Na’Moks (John Ridsdale). He is not willing to settle for mutual benefit agreements or the modern equivalent of beads and trinkets:

“They wanted access to the land, and we said you’re not getting access, you’ll never get approval, not from the hereditary chiefs and not from our people.” A colonial mind, however, can’t fathom such arguments, because it still refuses to come to terms with the nation’s dirty past.

For the most part Canadians remain an arrogant mining people with little regard for the truths of our colonial history. Most still think we have nothing to acknowledge, let alone make amends for.

These deniers or doubters should read the indomitable Bev Sellars, former chief and councillor of the Xat’sull (Soda Creek) First Nation in Williams Lake. Her searing book, Price Paid, presents the issue of reconciliation in a clear and telling metaphor.

Imagine you owned a nice home. Then you graciously shared it with a bunch of white guests from across the seas. Without even saying thanks, these guests took over more and more rooms in the house. Soon they imposed their own laws and even banned the owner’s original customs. Eventually the invaders kicked out the original owners and left them to die.

Until every Canadian can visualize that colonial abuse, until all of us can feel that in our guts, there will be no reconciliation in this country.

Those still unconvinced by Sellars’ metaphor should pick up James Daschuk’s brilliant Clearing the Plains.

We all know that the American government thought they could murder Indians into submission. The Canadian government took a different approach: it pursued a policy of planned relocation, starvation and disease. Indian agents stole funds and raped Indigenous women. Anyone who resisted was hanged. Then came residential schools.

The Canadian state’s willingness to ignore reconciliation is even more galling when you consider its colonial defence of the preposterous economics of LNG and fracked gas in northern B.C.

In Canada, LNG development has become an absurd Soviet engine that ignores costs and environmental damages.

But being Canadian, it drapes itself with the plastic word “responsible.”

“Responsible” subsidies for the foreign-funded LNG industry now include low royalties; nearly $1 billion worth of royalty credits; discounted electricity prices; reduced corporate income taxes; free water for fracking; reduced carbon taxes and the deferral of provincial sales taxes during construction. The Canadian government even invested $275 million in LNG Canada!

These subsidies, however, still can’t make LNG economic. In 2018 the Canadian Energy Research Institute examined the economics of LNG.

It concluded that Western Canada LNG would be $1 to $3 more expensive than the current spot price in Japan of $8 per million (BTU) and needed more subsidies and tax credits.

CERI then calculated what the LNG industry would need in terms of future prices to remain economically viable: a market price of $8.99 per million BTU or higher in Asia to break even. Or an oil price of approximately $80 or higher to break even under long-term LNG contracts.

Those conditions don’t exist and show no signs of coming into being.

A global LNG supply glut has collapsed prices in Asia to as low as $5.5 per million BTU in Japan and India. Analysts say the glut could last years.

Meanwhile oil prices, which influence LNG pricing, remain in the doldrums.

Unless the Canadian and B.C. governments are prepared to give away LNG, neither Coastal GasLink nor LNG Canada are economic at this point in time.

These appalling economics explain why Chevron pulled out of the Kitimat LNG project last fall. At the same time, Chevron wrote off $11 billion in underperforming shale gas assets in Appalachia due to low prices and overproduction.

Throughout North America’s oil patch, the shale boom has collapsed as more companies go bankrupt and investors refuse to loan more money to companies whose costs exceed their revenue.

Given the volatility of commodity prices, reconciliation should come first.

Even if there was a decent economic case to be made for LNG (and there isn’t), the indecency of our past morally demands that we do the right thing, and respect Aboriginal title.

And let’s not strut like peacocks and talk about the rule of law as Horgan has done.

In Alberta, oil and gas companies now break the law every day. They owe $172 million in taxes to rural municipalities and millions more to landowners for unpaid surface leases.

Does Alberta Premier Jason Kenney arrest the offending white collar criminals and charge them with breaking civil contracts? No. He actively excuses their behaviour.

So there is one rule of law in Canada for insolvent resource extractors, and another law for First Nations, rural municipalities and landowners.

Fortunately, the Wet’suwet’en respect laws that are thousands of years old.

They plan on upholding them.

So should we. SOURCE

RELATED:

At the Unist’ot’en Outpost, a Tightknit Group Readies for Police

BREAKING: MILITARIZED POLICE RAID WET’SUWET’EN FIRST NATION

Here is how you can take action in solidarity with land defenders on Wet’suwet’en territories:

• Join a solidarity action close to you (this link will take you to Facebook)

• Donate to the legal fund 

• Check out the supporter toolkit to learn about other ways to help

True test of reconciliation: respect the Indigenous right to say No

Photo by Mychaylo Prystupa

Conflict is coming. There is no getting around that fact. Anyone who believes that reconciliation will be about blanket exercises, cultural awareness training, visiting a native exhibit at a museum or hanging native artwork in public office buildings doesn’t understand how we got here. Reconciliation between Canada and Indigenous peoples has never been about multiculturalism, diversity or inclusion. Reconciliation is not an affirmative-action program, nor is it about adding token Indigenous peoples to committees, advisory groups or board rooms. We cannot tokenize our way out of this mess that Canada created. Real reconciliation requires truth be exposed, justice be done to make amends and then Canada’s discriminatory laws, policies, practices and societal norms be reconciled with Indigenous rights, title, treaties, laws and jurisdiction. That process of truth, justice and reconciliation will be painful. It requires a radical change. Nothing less than the transfer of land, wealth and power to Indigenous peoples will set things right. The true test of reconciliation will be whether Canada respects the Indigenous right to say ‘no.’

Canadian courts have been issuing decisions about Aboriginal rights and title and treaty rights, sending the strong message to governments that they must obtain the consent of Indigenous peoples before taking actions or making decisions that will impact our lives. Governments have not listened. Canada’s failure to listen is one of the reasons why Indigenous peoples spent more than 25 years negotiating the United Nations Declaration on the Rights of Indigenous Peoples which guarantees the right of Indigenous peoples to free, prior and informed consent. Article 19 of UNDRIP provides:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Consent is a legal concept which can be defined as the voluntary acquiescence of one person to the proposal of another. In general, it is the right to say yes or no to something and/or put conditions on an agreement. Consent must be free from misrepresentations, deceptions, fraud or duress. This is a very basic right, but one which has been denied to Indigenous peoples since contact. Take for example, the actions of Indian agents and police, who used food rations to extort sex from Indigenous women and girls. In the context of being forced to live on reserves, not being allowed to leave the reserve and being dependent on food rations, what real choice would a young girl have? Similarly, when police officers or judges detain Indigenous women and girls, drive them to secluded locations and force them to perform sexual acts — there is no real consent when the threat of lethal force or arrest on false charges is ever-present. This is especially so given our knowledge of the number of assaults and deaths of our people in police custody. There was no consent when they stole our children and put them into residential schools, nor was there any consent when priests, nuns and others raped those children. There was no consent when doctors forcibly sterilized Indigenous women and girls — sometimes without their knowledge.

Feb. 25, 2018: Justice for Colton and Tina rally, Edmonton. The woman at centre holding up sign is Colten Boushie’s cousin Jade Tootoosis. Photo by Paula E. Kirman/ RadicalCitizenMedia .com.Today, the right of Indigenous peoples to free, prior and informed consent has become the central issue in Canada’s reconciliation agenda. Justin Trudeau campaigned on the promise of implementing UNDRIP into law and respecting the right of Indigenous peoples to say no. When asked by APTN host Cheryl McKenzie whether no would mean no under his government, he responded “absolutely.” Another way of putting this is that Indigenous peoples could exercise their legal right to refuse to approve or authorize a project. This veto right stems from various sources, but primarily our inherent rights as Indigenous governments with our own laws and rules which govern our traditional territories. They may also come from specific Aboriginal rights, treaty rights and Aboriginal title. These rights are not only protected within our own Indigenous laws, but also section 35 of Canada’s Constitution Act, 1982 and various international human rights laws, including UNDRIP. Yet, after Trudeau announced his latest idea to create a legislative framework to recognize Indigenous rights and avoid litigation, Justice Minister Raybould stated clearly that “consent doesn’t mean a veto” for Indigenous peoples.

So, we are now back where we started. Canada has not yet reconciled its laws, policies or political positions to the fact that Indigenous peoples have the right to say no to development projects on our lands. This means that conflict will continue to grow over mining, forestry, hydraulic fracking and pipelines on Indigenous lands. The true test of reconciliation will inevitably play out on the ground, like it did in Oka, Ipperwash, Gustafsen Lake, Esgenoopetitj (Burnt Church) and Elsipogtog. Will Canada force the Kinder Morgan pipeline to go ahead against the will of British Columbia and First Nations? Will Canada isolate and exclude First Nations who do not subscribe to the extinguishment requirements of Canada’s land-claims process? What will happen to First Nations who stop provincial social workers and police officers from entering their reserves to steal more children into foster care? This will be the real test of our inherent right to say no.

Canada will only truly give effect to reconciliation when Indigenous peoples have the right to say no — no to discriminatory government laws and policies; no to federal and provincial control over our Nations; no to racism from society, industry and government; no to sexualized violence, abuse and trafficking; no to theft of our children into foster care and the imprisonment of our peoples; no to the ongoing theft of our lands and resources; and no to the contamination and destruction of our lands, waters, plants, animals, birds and fish. The right to say no is the core of any future relationship with the Canadian state and its citizens. It’s a basic right — one which is grounded in our sovereignty as individuals and Nations to decide for ourselves the life we wish to live. Canada has made it clear we have no right to say no, only an obligation to say yes. First Nations leaders and citizens should not wait to see how this plays out in court – they should assert and defend their right to say no now. SOURCE

First Nations Vow to Fight on after Trans Mountain Defeat

Federal court rejects argument consultation was inadequate. ‘Reconciliation stopped today,’ says representative.

The $7.4-billion Trans Mountain pipeline expansion project is already under construction. The expansion has been strongly opposed by the Indigenous governments challenging it in court. Photo by Jason Franson, the Canadian Press.

The Federal Court of Appeal has dismissed an application from First Nations seeking to overturn the government’s approval of the Trans Mountain pipeline expansion because they had not been adequately consulted.

While pipeline supporters applauded the court’s decision, opponents — including representatives of the First Nations involved in the challenge — promised the fight will continue both inside and outside the legal system.

“The applicants’ submissions are essentially that the Project cannot be approved until all of their concerns are resolved to their satisfaction,” Justices Marc Noël, J.D. Denis Pelletier and J.B. Laskin wrote in their unanimous reasons for judgment released today.

“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,” it said.

The application was filed by the Coldwater Indian Band, Squamish Nation and Tsleil-Waututh Nation along with the Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.

The respondents were the Canadian attorney general, Trans Mountain Pipeline ULC and Trans Mountain Corporation. The attorneys general for Alberta and Saskatchewan intervened, as did the Canadian Energy Regulator (formerly known as the National Energy Board).

The $7.4-billion project, already under construction, will twin an existing 1,150-kilometre pipeline from near Edmonton to Burnaby, tripling capacity to 890,000 barrels per day.

The expansion has been strongly opposed by the Indigenous governments challenging it in court, as well as by local governments, environmental groups and individuals. More than 200 people have been arrested protesting construction in the Lower Mainland, including former Green Party of Canada leader Elizabeth May and now Vancouver Mayor Kennedy Stewart, cases that have led to charges in many cases and proceeded through the court system.

In a 2018 ruling, the court had found that the federal government’s original decision to approve the expansion of the pipeline, which it now owns after buying it from Kinder Morgan for $4.5 billion, was based on an “impermissibly under-inclusive” environmental assessment and a failure by the Crown to fulfil its duty to consult with Indigenous peoples.

Today’s decision found the consultation process launched after that ruling has been sufficient, justifying the subsequent federal government approval.

“Contrary to what the applicants assert, this was anything but a rubber-stamping exercise,” the justices ruled. “The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.”

“It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law.”

Trans Mountain Corporation welcomed the ruling. “After many years of consultation and review we are pleased to be able to continue moving forward and building the Project in respect of communities, and for the benefit of Canadians,” President and CEO Ian Anderson said in an emailed statement.

“The Government of Canada’s additional Indigenous consultation represented an immense undertaking by many parties. The Government was committed to a specific and focused dialogue with affected Indigenous communities to ensure Canada, and the Company heard their concerns and responded.”

Alberta Premier Jason Kenney tweeted “Another win on the #TMX pipeline for Alberta! Pleased to see this unanimous decision by the Federal Court of Appeal to reject this challenge. Now let’s get it built.”

Representatives of the First Nations involved in the case expressed deep disappointment with the ruling during a news conference in Vancouver but said the fight will continue.

“Disappointing as it is, it’s one step,” said Tsleil-Waututh elected Chief Leah George-Wilson. “We have far longer to go in this journey.”

We’ll continue to fight to enforce our jurisdiction within our territories,” said Khelsilem, a Squamish Nation elected councillor, stressing the continued right to self-determination on unceded lands.

While there are legal options to continue the fight, he said, it’s worth remembering B.C.’s long history of civil disobedience in support of environmental causes. “There are a lot of people who are willing to do a lot to defend our coast and defend our communities.”

The applicants have 60 days to review the decision and decide whether to appeal it to the Supreme Court of Canada.

Several speakers pointed out that the federal government’s drive to complete the pipeline expansion is at odds with its stated goals of reconciliation with Indigenous people and action on the climate crisis. The pipeline will carry bitumen from Alberta’s oil sands to be exported by tanker from Burnaby.

“Reconciliation stopped today,” said Rueben George, a spokesperson for the Sacred Trust Initiative of the Tsleil-Waututh Nation. “This government is incapable of making sound decisions for our future generations.”

University of Victoria law professor Chris Tollefson said the appeal court’s decision was unsurprising and the matter is almost certainly headed to the Supreme Court of Canada.

The original decision requiring additional consultations “made it clear there were some fundamental problems with the process and sent it back for those to be fixed,” said Tollefson, who represented BC Nature through the National Energy Board process.

“The new process was not much better than the old one. It still left many of the same questions and problems on the table,” he said. “Instead of opening the courthouse door and hearing those arguments, what the court did the second time was to severely constrain which arguments it would hear and from whom they would hear them.”

“What we have is a judicial process that is very much open to criticism in terms of giving parties with a very legitimate stake, who have worked in this process, they’ve been effectively denied their ability to make their case.”

Today’s decision answers a small number of questions for a narrow number of litigants, meaning the Supreme Court will eventually have to rule on all the still unanswered questions, he said.

“It’s not the end of the story.”

Today’s ruling follows a unanimous January Supreme Court of Canada decision that found British Columbia lacked the jurisdiction to regulate the flow of heavy oil across the province. SOURCE

 

John Ivison: Pipeline dispute raises important question — who speaks for First Nations?

Reconciliation means making one system compatible with another, not Indigenous law trumping Canadian law at the behest of some self-anointed aristocrats

Wet’suwet’en hereditary chiefs opposed to the Coastal GasLink pipeline hold a press conference in Smithers, B.C., on Jan. 7, 2020.Amy Smart/The Canadian Press/File

The “territorial re-occupation” of land along the proposed Coastal GasLink pipeline in B.C. by hereditary chiefs of the Wet’suwet’en people has raised some thorny constitutional questions and some surprising interventions.

The $6.2 billion, 670 km pipeline route runs from Dawson Creek, near the Alberta border, to Kitimat in B.C.’s north coast region, crossing through traditional Wet’suwet’en territory.

The pipeline is supported by the five Wet’suwet’en bands, and their elected chiefs and councils. They point out the advantages for local communities – financial benefit agreements worth $338 million for the 20 bands along the route and contract work for indigenous businesses estimated at $620 million. Reginald Ogen, president of a company that has won a $75 million contract to provide camp facilities, has noted that the jobs may be short and medium term but the training “lasts a lifetime and provides future opportunities”.

The project is opposed by the hereditary chiefs who represent the 13 Wet’suwet’en houses (12 are represented by the Office of the Wet’suwet’en, while the Dark House operates independently). Small groups of “land defenders” have blocked a bridge crucial to future development.

The project hit the headlines earlier this month when the United Nations Committee for the Elimination of Racial Discrimination called for an immediate stop to construction, only to be given pause for thought when it was pointed out to the committee chair that most communities along the route support the pipeline.

B.C. Supreme Court justice, Marguerite Church, extended an injunction late last year that found in favour of the pipeline proponent and against the hereditary chiefs blocking construction.

This has sparked a debate about who speaks for the Wet’suwet’en. Former justice minister Jody Wilson-Raybould weighed in with an opinion piece in the Globe and Mail last week that raised eyebrows.

The independent MP for Vancouver Granville argued that Indigenous reconciliation requires moving beyond the Indian Act to systems of Indigenous governance that are created on the ground and recognized by others.

Independent MP Jody Wilson-Raybould. Mike Bell/Postmedia/File

So far, so good. But deconstructing the colonial reality, in Wilson-Raybould’s eyes, means blowing up the band councils.

“The legal reality is that band councils are a creature of the colonial Indian Act and have limited delegated authority tied to reserves,” she said. “They do not have inherent authority, nor are they self-governing or an expression of self-determination. They cannot simply represent the proper rights holder – the broader group that shares a common language, culture and tradition – and typically there is more than one band within a given territory of an Indigenous people.”

Nowhere in her article does it stress the imperative point – they are elected and those claiming to speak for the broader First Nation are not.

She doesn’t explicitly come out in favour of the hereditary chiefs over the elected band chiefs but she comes close – an extraordinary inclination from a democratically elected MP.

In the case in question, all the band chiefs in the given territory are in favour of the pipeline proceeding.

Most people would probably agree that it should be up to Indigenous people to decide on how they are governed. The government has suggested moving from 670 small bands to larger First Nations more capable of delivering services.

There are no simple answers to these tough questions

But one would hope that whatever structure evolves is based on universal suffrage and democratic principles, rather than on some form of feudal genealogy.

The hereditary chiefs contend that the Wet’suwet’en are represented by traditional governance structures and that, since the pipeline’s proponents were not given permission to enter unceded territory, they are in violation of Wet’suwet’en law.

The elected chiefs beg to differ, resulting in considerable tension between the two groups. Reginald Ogen, who is a member of the Wet’suwet’en First Nation, contends his section 35 rights are being infringed by the blockade.

Further confusion has emanated from an internal debate about who qualifies as a hereditary house chief. The lead defendants in the B.C. Supreme Court case claim to represent the Unist’ot’en people, which is not a governing body of the Wet’suwet’en.

Madam Justice Church resolved that Indigenous customary laws are not an “effectual” part of Canadian law until they are somehow recognized in treaties or court declarations. As such, she said the idea that Indigenous laws supersede Canadian law and the B.C. government’s approval of the Coastal GasLink pipeline does not stand up to scrutiny. Her ruling gives RCMP the right to arrest people and remove camps designed to block pipeline construction.

Supporters of the Wet’suwet’en hereditary chiefs and who oppose the Costal Gaslink pipeline take part in a rally in Smithers B.C., on Jan. 10, 2020. Jason Franson/The Canadian Press/File

However, she did acknowledge that the question is complex and raises “significant constitutional questions.” Wilson-Raybould covered some of this terrain in her article, which called for a “foundational legislative shift through the development of a recognition and implementation of Indigenous rights framework”.

What does foundational shift look like? In her last act as justice minister, Wilson-Raybould issued a directive on civil litigation involving Indigenous people that promoted negotiation and settlement, instead of drawn out court battles. Critics in the justice department felt the effect was to instruct government lawyers to litigate badly.

Dwight Newman, the Canadian research chair in Indigenous Rights at the University of Saskatchewan, said the task of reconciling how Indigenous law intersects with Canadian law will be problematic.

“There are no simple answers to these tough questions,” he said.

But reconciliation means making one system compatible with another. As the B.C. Supreme Court rightly concluded, it does not mean Indigenous law trumping Canadian law at the behest of some self-anointed Indigenous aristocrats. 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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