A contested pipeline tests the landscape of Indigenous law - who controls the land?
Pipeline owners say they have consent, but Wet'suwet'en leaders are divided
By JUSTINE HUNTER, BRENT JANG, WENDY STUECK, SHAWN MCCARTHY
Saturday, January 12, 2019 Print Edition, Page A12
With members of the Wet'suwet'en First Nation blockading a pipeline project on their traditional lands, Na'moks was standing by a crackling campfire, next to an RCMP checkpoint, drawing in the snow with his right boot.
The hereditary chief of the Tsayu clan made a small circle to represent the authority of elected band councils within reserves.
Outside that circle, he explained, is where Wet'suwet'en clans wield power over a vast territory.
"We are hereditary chiefs," he said, "and we have control of this land."
The temporary checkpoint was set up earlier this week in a remote area of the B.C. Interior as things got tense, with RCMP officers arresting 14 protesters on Monday at a blockade erected last month along a logging road.
The road leads to the Unist'ot'en camp on the Morice River bridge, where hereditary leaders were preventing construction workers from TransCanada Corp.'s Coastal GasLink pipeline project from passing. By Friday, the barriers were coming down, after the protesters agreed to comply with an interim court injunction to grant workers temporary access to the area. The way forward for the project, however, remains uncertain.
The pipeline is a vital piece of infrastructure for the launch of British Columbia's liquefied-natural-gas sector, supplying the planned $40-billion LNG Canada project - the largest private investment in the province's history. Almost a third of the proposed pipeline route crosses the territory to which the Wet'suwet'en maintain aboriginal rights and title.
Coastal GasLink has signed deals with First Nations all along the 670-kilometre route, including the elected chiefs of the Wet'suwet'en, who say the agreements will deliver economic benefits to their communities.
For both the provincial and federal governments - which have made solemn commitments to respect Indigenous rights and title - the agreements meant the company had secured sufficient consent for the project.
But who speaks for the Wet'suwet'en people?
Under Canadian law, the elected chiefs have authority over the reserves created by the Crown.
But authority over the 22,000 square kilometres of traditional Wet'suwet'en territory involves a matrilineal system of 13 unique houses, five clans and 38 house territories. Under that system, Na'moks, who belongs to the Beaver house under the Tsayu clan, is one of the hereditary leaders obligated to manage how those lands and resources are used.
The project has sown deep divisions and put a spotlight on the conflict between those two systems of leadership - one ancient, passed down through oral tradition, the other established and codified by federal law. It has demonstrated the messy but necessary processes resource companies and governments must confront when pursuing projects in British Columbia.
And it has forced Indigenous groups to face the tensions within their own communities - the painful trade-offs between economic development and ancient obligations of land stewardship.
Chief Jackie Thomas, the elected chief of the Saik'uz First Nation, said she worked hard on behalf of her community to secure a deal and the benefits that will come as a result of construction.
"We went through this long process in our community and we ensured that our concerns and worries were resolved. We had naysayers - they exist in all communities - but we sorted it out. I personally worked hard for this and I was happy to see a final investment decision reached."
But she said the politicians and the company would have been wiser to deal directly with the hereditary chiefs as well.
"It would help if Premier [John] Horgan and Prime Minister [Justin] Trudeau would go to the feast house at Wet'suwet'en, talk to the hereditary chiefs and give some serious attention to this matter," she said. "Let's dedicate some time and resource to see this through."
Mr. Trudeau, responding to heated questions about his government's support for the pipeline at a town-hall meeting this week, said it is up to the Wet'suwet'en people to sort out who represents them.
"It's not for the federal government to decide who speaks for you," he said. "My job is to work with all of you so that you are taking back control of your land, your future, your people, your destiny. ... And it's difficult."
Nowhere in Canada are the lines of authority more blurred than in B.C., where major resource developers have stumbled time and again over how to consult and win support from Indigenous peoples for their projects. The province is home to 203 Indian Act bands and most of the land remains subject to aboriginal claims.
Mr. Horgan met with the Wet'suwet'en hereditary chiefs on Aug. 31 in Smithers, hoping to find a way to resolve the brewing conflict at the Unist'ot'en camp.
He left without a resolution and concluded that the project had enough Indigenous support despite the opposition.
"The challenge for government, federal and provincial, is determining how we bring together these historic band councils modelled with, as I understand it, the emerging hereditary model that's very much manifesting itself in Wet'suwet'en territory," the Premier told reporters at a news conference on Wednesday, after the arrests triggered rallies across the country. (He later clarified that he meant to say "re-emerging.") Val Napoleon, an influential Indigenous scholar who holds the Law Foundation research chair at the University of Victoria's aboriginal justice and governance program, said the Premier has it all backward: Elected band councils are, in the time of the Wet'suwet'en, a new invention. The community has been governed under the hereditary model, she said, "since the land was forming," with a complete set of laws that is up to the task of resolving internal disputes and providing binding decisions.
She said there is a way forward, but the federal and provincial governments need to make a substantial commitment to build a bridge between Indigenous law and Canadian law.
"Indigenous legal orders need support to rebuild and restate legitimate processes so that when a decision is made, people will uphold it even if they don't get their own way. That's the legitimacy that's required," she said.
"And right now, that's not happening."
For Canada's resource industry, doing business in the vast areas of British Columbia where land claims have never been settled, this complexity can be daunting and discouraging.
Susannah Pierce, director of external relations for LNG Canada, welcomed the truce negotiated late last week, but in a socialmedia post, she said: "While this is good news, we remain concerned the agreement only pertains to a temporary injunction and only specific activities - not the full construction of the pipeline. In fact, social media posts by the Unist'ot'en indicate that the fight has only just begun."
This week's protests drew international attention and sparked discussions about the differences between the Wet'suwet'en system of hereditary chiefs and those elected under the Indian Act.
But that distinction shouldn't have come as a surprise. Hereditary Wet'suwet'en leaders have been claiming ownership of their traditional territory for decades, most notably in Delgamuukw v.
British Columbia. In that case, launched in 1984, Gitxsan and Wet'suwet'en hereditary chiefs claimed ownership of 58,000 square kilometres of territory. In a landmark 1997 ruling, the Supreme Court of Canada confirmed that Indigenous peoples have valid claims to ancestral lands that were never ceded by treaty.
"For over 21 years, the governments of Canada and B.C. and any lawyer who has done any level of aboriginal law would understand that when you're dealing with the Wet'suwet'en people ... on traditional territory, you're talking about a system of hereditary chiefs," said Peter Grant, a veteran lawyer who represented the plaintiffs in Delgamuukw, in a recent interview.
Western Canadian energy companies have a long history of engaging with Indigenous communities and understand that there are differing opinions and potential opposition even after agreements have been signed, said Brian McGuigan, manager of Indigenous relations for the Canadian Association of Petroleum Producers.
"This is certainly not the first time a company has struck an agreement with elected officials and another part of the community says, 'Well, hang on a minute, we have something else to say about this,'" he said.
It's an issue that must be resolved within Indigenous communities, but governments are grappling with it, too, especially as both B.C. and Ottawa are preparing to enact the principles of the UN Declaration on the Rights of Indigenous Peoples, which stipulates that they must give consent to industrial development on their traditional territories. By endorsing the declaration, the federal government has said it will aim to secure Indigenous consent on projects but does not guarantee it.
There is a parallel process as well in defining Indigenous selfgovernance.
Mr. Trudeau, who made reconciliation with Indigenous communities a major theme of his government, has condemned the Indian Act - under which elected band councils were established - as a relic of the colonial past and has encouraged First Nations to pursue their own self-government models. But that process has a long way to go.
For the Wet'suwet'en who oppose the pipeline, the deals signed between the pipeline's proponents and elected band councils mean little. Molly Wickham, a spokeswoman for the blockade along the logging road and one of the 14 people arrested on Monday, insisted the pipeline will "absolutely not" be built.
"This is far from over," she said. "This isn't just about the pipeline, this isn't just about this one project. This is about how our people, and our governance system, has been ignored, diminished and attacked - and how we are done with that."
JOHN SOPINSKI/THE GLOBE AND MAIL, SOURCE: WETSUWETEN.COM
Protesters are seen at an Unist'ot'en camp near Houston, B.C., on Wednesday. By Friday, the barriers were coming down, after the protesters agreed to comply with an interim court injunction to grant TransCanada workers temporary access to the area. The way forward for the Coastal GasLink pipeline project, however, remains uncertain. JIMMY JEONG/THE GLOBE AND MAIL