Wet’suwet’en pipe­line op­po­si­tion con­tin­ues

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VAN­COU­VER Wet’suwet’en First Na­tion hered­i­tary chiefs have reached a deal with the RCMP to open a block­ade pre­vent­ing Coastal GasLink pipe­line em­ploy­ees to do sur­vey work in their ter­ri­tory, but they haven’t dropped their out­right op­po­si­tion to the pro­ject.And their dis­pute over whether the elected Wet’suwet’en band coun­cil had the au­thor­ity to sign an im­pact and ben­e­fits agree­ment on be­half of all the First Na­tion’s peo­ple remains an open ques­tion that high­lights the com­plex­ity of Indige­nous law.Coastal GasLink’s ef­forts to se­cure agree­ments with all 20 elected Indige­nous gov­ern­ments along its en­tire 670-kilo­me­tre right of way were her­alded by Pre­mier John Hor­gan as an ex­am­ple of get­ting it right when it comes to First Na­tions consultation.The pipe­line’s path starts near Daw­son Creek in B.C.’s north­east and runs to tide­wa­ter at Kiti­mat, ter­mi­nus for the $40-bil­lion LNG Canada de­vel­op­ment it is in­tended to serve.The Wet’suwet’en op­po­si­tion, how­ever, il­lus­trates how in many cases in Bri­tish Columbia, the re­la­tions be­tween First Na­tions band coun­cils, which are cre­ations of the fed­eral In­dian Act, and the pre-ex­ist­ing and his­toric hered­i­tary sys­tems of gov­er­nance are still be­ing sorted out, said Indige­nous le­gal scholar, Val Napoleon.The dif­fer­ence, Napoleon said, is that hered­i­tary sys­tems are the larger, his­toric le­gal, so­cial and eco­nomic or­ders that First Na­tions lived by that cov­ered the en­tire ter­ri­tory of spe­cific groups. Elected band coun­cils have au­thor­ity del­e­gated by the fed­eral gov­ern­ment over ac­tiv­i­ties on spe­cific re­serves.His­tor­i­cally, most Indige­nous peo­ple were “non-states,” Napoleon said, mean­ing that their au­thor­ity was dis­trib­uted among fam­ily, house or clan-based groups that are de­ter­mined ma­tri­lin­eally.Hered­i­tary chiefs come from spe­cific fam­i­lies, but don’t di­rectly in­herit po­si­tions, Napoleon said. They earn their po­si­tions, and au­thor­ity, through their abil­ity to up­hold the in­tegrity of their land and their rules for so­cial or­der.In the case of the Wet’suwet’en, its hered­i­tary sys­tem con­sists of 12 houses that are or­ga­nized in five dif­fer­ent clans gov­ern­ing dif­fer­ent parts of the to­tal his­toric Wet’suwet’en ter­ri­tory.“What we have here is a dis­pute over the ex­tent of au­thor­ity of a band coun­cil to make de­ci­sions be­yond re­serve bound­aries,” Napoleon said. “And peo­ple are ar­gu­ing that (the elected coun­cil­lors) don’t have that au­thor­ity un­der Wet’suwet’en law.”“That’s the other im­por­tant is­sue here,” Napoleon said. “Indige­nous law hasn’t gone away, but it has been un­der­mined and there are gaps in what we’ve been do­ing and oth­ers are do­ing to re­build it.”Napoleon noted that it was Gitxsan and Wet’suwet’en hered­i­tary chiefs who brought the land­mark Del­ga­muukw case for­ward to the Supreme Court of Canada, which re­sulted in a de­ci­sion that es­tab­lished that First Na­tions still have Abo­rig­i­nal ti­tle to their his­toric ter­ri­to­ries.That prin­ci­ple and the roles of hered­i­tary gov­er­nance were fur­ther up­held in the Supreme Court of Canada’s 2014 Tsil­hqot’in de­ci­sion.“Part of the prob­lem here is that Wet’suwet’en law is still in­vis­i­ble to many,” Napoleon said. “So they can’t fig­ure out what the proper re­la­tion­ship is be­tween these laws and Cana­dian law and they can’t fig­ure out what’s a le­git­i­mate process to deal with these dis­putes.”In the­ory, “there is a very cred­i­ble ar­gu­ment,” that the Wet’suwet’en hered­i­tary sys­tem is still the “cus­tom­ary gov­ern­ment” with au­thor­ity over mat­ters in their larger, of­fre­serve ter­ri­tory, said B.C. lawyer Jack Woodward, who spe­cial­izes in Indige­nous law.Woodward said he isn’t fa­mil­iar with the Wet-suwet’en sit­u­a­tion, so he was speak­ing in ab­stract terms.The Tsil­hqot’in de­ci­sion es­tab­lished that First Na­tions re­serves are small en­ti­ties within larger Abo­rig­i­nal ter­ri­to­ries, Woodward said, and that the re­serves’ band coun­cils, des­ig­nated un­der the In­dian Act, have ju­ris­dic­tion over ac­tiv­i­ties on re­serve.How­ever, “it is un­clear who has ju­ris­dic­tion over ar­eas of Abo­rig­i­nal ti­tle or un­proven Abo­rig­i­nal ti­tle,” Woodward said.Mat­ters are com­pli­cated fur­ther, Napoleon said, by the fact that elected band chiefs and coun­cil­lors also be­long to fam­ily houses and have their places in the hered­i­tary sys­tem, often as hered­i­tary chiefs.So de­pend­ing on the First Na­tion, it isn’t al­ways as clearcut as ei­ther be­ing part of the hered­i­tary sys­tem or the elected coun­cil.“You also have to be spe­cific about the types of agree­ments (com­pa­nies) have and the ex­tent to which those agree­ments au­tho­rize band coun­cils to act on be­half of peo­ple on lands that aren’t re­serve lands,” Napoleon said.Woodward has ad­vice to the pro­po­nents of re­source projects about how to ap­proach Indige­nous com­mu­ni­ties around consultation.“To be safe, if you’re a com­pany, you would try to get an un­der­tak­ing with ( both elected and hered­i­tary sys­tems),” Woodward said. “You would need a bit of an­thro­po­log­i­cal or ethno­graphic in­tel­li­gence on the ground to fig­ure out who the hered­i­tary chiefs are, and make sure you’ve got them all on board.”

From left, Hered­i­tary Chief Smo­gel­gem, Chief Warner Wil­liams, Chief Madeek, Chief Hag­wilneghl and Chief NaMoks met with RCMP mem­bers and Coastal GasLink rep­re­sen­ta­tives on Thurs­day. The block­ade on Wet’suwet’en land was re­moved.

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