The Coastal Link pipeline and the planned Kitimat LNG terminal was heralded as the biggest private sector investment in the history of Canada. Prime Minister Trudeau and B.C. Premier Horgan celebrated this investment milestone in a major news conference in October 2018 as an example of getting resource and economic development right - in collaboration with resource and pipeline companies and First Nations along the route.
First Nations band councils have signed benefit agreements with TransCanada pipelines as part of the negotiation process. But here’s the rub: band councils govern reserve lands, not the large tracts of traditional Wet’suwet’en territory that have never been the subject of a treaty.
Band councils govern reserve lands, not the large tracts of traditional Wet’suwet’en territory that have never been the subject of a treaty.
In fact, an iconic Supreme Court of Canada decision (Delgamuukw 1997) recognizes Wet’suwet’en interests in unceded traditional territories.
Those land interests are vested in a traditional matriarchal governance system of clans and houses in which hereditary chiefs hold authority. All but one of the hereditary Wet’suwet’en chiefs have not consented to the construction of the pipeline on their traditional territory.
All but one of the hereditary Wet’suwet’en chiefs have not consented to the construction of the pipeline.
Thanks to our constitution, all resource projects in Canada must fulfill a duty to consult First Nations who may be affected. Canada’s duty of consultation is spelled out further in the UN Declaration on the Rights of Indigenous Peoples in the provisions for free, prior and informed consent (Article 19).
TransCanada Pipelines (owner of the Coastal Link pipeline) engaged in a consultation process with the most obvious First Nation legal authorities: band councils. But reports suggest that community consultation processes did not adequately account for the hereditary system. This means that the letter of the law has not yet been followed on the duty to consult as framed by the Constitution and the Delgamuukw decision (and subsequent court rulings such as Tsilhqot’in -2014).
Many observers look at this situation and lament a lack of law and order.
Many observers look at this situation and lament a lack of law and order. You may have heard comments like, “We can’t even get a pipeline built because of protests!” I certainly have.
But here’s the thing: legality and law and order questions are not cut and dried in this and many other land disputes. The Supreme Court has ruled (in Delgamuukw) that the Wet'suwet'en people have a legal interest in this land - but the specific details of title have not been finalized in this region. Canada’s constitution and the UN Declaration are the root of land rights like this. The Wet’suwet’en hereditary chiefs who object to the pipeline stand on their own legal traditions and have a clear argument in their favour in the laws of Canada.
Reconciliation requires a turning in a new direction.
The complex jurisdictional issues of this case must be wrestled with as we attempt to understand the fullness of the of the rule of law in this context. These jurisdictional issues are creating tensions in Wet’suwet’en communities and create significant uncertainties for investors like TransCanada and the builders of the Kitimat LNG terminal.
A dear friend and mentor, Bishop Mark MacDonald (National Indigenous Bishop of the Anglican Church of Canada) has often said that reconciliation requires a turning in a new direction. Major court decisions on Indigenous land rights like Delgamuukw and Tsilhqot’in also require a significant turning away from colonization towards honouring the jurisdiction and collective rights of First Nations over their traditional and ancestral lands.
I must say I lean toward a ‘reconciliation bias.’
As an analyst and advocate working for the Christian Reformed Church for justice and reconciliation it is critical that I’m non-partisan and as unbiased as possible. However, since coming into a deeper understanding of the requirements of reconciliation I must say I lean toward a ‘reconciliation bias.’ This bias recognizes that the ‘turning’ to reconciliation includes plenty of tension and messiness, and a need to probe well beneath the surface of high profile conflicts. That probing includes listening carefully to Indigenous voices in order understand more of what turning towards reconciliation in relationships, governance and economic/resource development actually means.
Dramatic arrests at a blockade make striking images and sometimes result in quick judgements and polarization. It’s always good to read from multiple sources and ask what their interests might be in painting the story a certain way. It's also important to remember that the Coastal Link-Wet’suwet’en challenges are not new or unique: it is another example of land and resource disputes like the Trans Mountain pipeline, Six Nations/Caledonia, Oka, or the Ring of Fire.
Dramatic arrests at a blockade make striking images and sometimes result in quick judgements and polarization.
We live in an oft-touted era of reconciliation in which “Nation to Nation” relationships between Canada and First Nations, Inuit, and Metis communities are a high value of government. If Nation to Nation is to be more than nice words, Canada and Canadians need to wrestle with the key issues of consultation and consent in deep relationship with Indigenous communities in all their complexity. That would be reconciled law and order.
Nation to Nation Matters (OKT Law) - Nation to Nation is a fundamental principle undergirding First Nation consultation and consent under the constitution.
There are two kinds of Indigenous governance structures, but Canada has been listening to just one (CBC) - A recent op-ed by prof. Carey Newman on Indigenous authority structures.
Gitxsan: Recent History - A short summary of the Delgamuukw decision of the Supreme Court. This case is currently incomplete, but a subsequent decision of the court (Tsilhqot’in) has fully applied the principles of Delgamuukw and awarded title of traditional lands.
What does reconciliation mean at Unis’tot’en? Two local perspectives (Do Justice) - Local Christian school teacher Jonathan Boone and his daughter Kayla, a Kings University College student, offer their perspectives, not as experts nor as Wetsu’wet’en representatives of any kind, but simply as local CRC people seeking to be allies to the Wetsu’wet’en people.
Arresting Indigenous protestors is not the way to reconciliation (The Province) - A professor emeritus of Osgoode Law School discusses the legal aspects of the case.
[Photo by Arnold Dogelis on Unsplash]
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