Tag Archives: Pipelines

A legal Quagmire

Indigenous Issues,

 

Until recently, purported Wet’suwet’en hereditary chiefs, who oversee 22,000 s.q. km of territory in British Columbia, have refused to allow the company Coastal GasLink access to their lands. According to the judgment of Madam Justice Church of the B.C. Supreme Court in the Coastal GasLink Pipeline Ltd. v. Huson, 2019  case that went to her court on the issue of granting an injunction to CoastalGasLink to stop them from blockading access to the land there is significant doubt as to whether or not the elected Chiefs and Councils  have the jurisdiction to decide whether or not the pipeline can be built on Wet’suwet’en land. This is what she said in her judgment in that case:

“The evidence before me indicates significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project, including disagreements amongst the Wet’suwet’en people as to whether traditional hereditary governance protocols have or have not been followed, whether hereditary governance is appropriate for decision-making that impacts the entire Wet’suwet’en nation and the emergence of other groups, such as the Unist’ot’en, which purports to be entitled to enforce Wet’suwet’en law on the authority of Chief Knedebeas and more recently the WMC, which apparently seeks to challenge the authority of the hereditary chiefs to make decisions for the Wet’suwet’en nation as a whole and the manner in which the traditional governance processes have occurred.”

The WCM is Wet’suwet’en Matrilineal Coalition that has 5 board members  representing each of the five Wet’suwet’en clans. Each of the board members is either a hereditary chief or wing chief.

Sadly the case is a mishmash and I have a lot sympathy with the judge in that case who had to sort through the maze of conflicting facts. It really was not an application to the court to determine Aboriginal title. It was rather an application for an injunction which is determined on the basis of affidavit evidence and not evidence at a trial that becomes very difficult (when it is not impossible). The judge does not listen to witnesses, but only reads their written statements in affidavit form. Often there is no cross examination.

One of the major problems with this case is who speaks for the Wet’suwet’en people? The pipeline project has the support of 20 elected First Nation Councils along the proposed route, but the Wet’suwet’en chiefs say the authority of these groups only applies to reservations – not traditional territory.

We have to remember that the Indian Act provides for each recognized First Nation to have a Chief and Council and a reserve.  In return usually the First Nation ceded land to Canada so that Canada could have the ceded land for the development it wanted. In that way, it would have a solid root of title to pass on to European immigrants.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’way Aboriginal title case. I commented on that case earlier in this blog. In that case they provided the court with voluminous detailed historical evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. At least that is the position of the Wet’suwet’en Hereditary Chiefs. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves. In the injunction case Justice Church acknowledged that this was the position of the Hereditary Chiefs but did not say whether or not she agreed with it.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Indigenous peoples hold rights to lands in Canada that extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. But what that actually means in practice is often far from clear, and inevitably, in cases of dispute, requires a court, and often that means ultimately the Supreme Court of Canada, to make a ruling, as it did in the Tsilhqot’in  case that I have  also commented on in this blog. It was another of the landmark cases that went to all the way to the Supreme Court.

The Wet’suwet’en people, like most First Nations in British Columbia,  never entered into a treaty agreement with Canada whereby they disposed of all of all of their territory. As a result they take the position that Canada can’t claim it’s their land unless they have a purchase receipt with the crown. That is consistent with the Royal Proclamation of King George of England in 1763 that really is the basis of Canadian aboriginal law. Only the king (now Canada) could buy land from First Nations and if it did, then that land is owned by the Crown (the government of Canada) who can of course use that as basis for land grants to anyone it chooses, such as immigrants to Canada. Without such an acquisition from the First Nations by the Crown, the origin claims of the original owners must prevail.

I recognize that it is difficult for developers in such circumstances to figure out with whom it must consult. On the other hand, look at the corporate structure of Coastal GasLink and its international partners. That makes the Wet’suwet’en organization look like the simplicity of child’s play in comparison. But it is not enough to say that 20 Chiefs and Council have approved of the project. It is more complicated than that. In fact, it’s a legal quagmire. There is more than one such quagmire in this case.

Tsilhqot’in: If Aboriginal title is Established

Indigenous Issues,

In the Tsilhqot’in case, the Supreme Court found that the First Nation had successful established its claim to aboriginal title to the land in question. In other words, the First Nation owned the land when Europeans/Canadians first encountered them. It was not empty land free for the taking.

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. In order to interfere with that ownership right, this requires the government to demonstrate both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  The honour of the Crown demands this on the part of our government.

This means the government must act in good faith in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty imposes an obligation of proportionality into the justification process: the government authorized incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  According to the Supreme Court, this s. 35 Constitutional framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.  In a day of reconciliation this is very important.    I think this is a rational balancing of rights and responsibilities in such cases. Don’t you?

In the Tsilhqot’in case it was successfully argued that the issuance by the Province of B.C. of the logging licences affecting the land in 1983 and onwards, before title was declared was unconstitutional.  The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests before issuing such a license.  The Province did neither and therefore breached its duty owed to the Tsilhqot’in.

However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.

I think similar issues might arise in the Wet’suwet’en case. We’ll see if I’m fright.

Screaming for Law

Indigenous Issues,

The issue of the protests over the gas pipeline in or near the traditional territory of the Wet’suwet’en people is extremely complex. It has generated a lot of heat. I am trying my pitiful best to shine a little light on the issues from afar. Not only am I far away physically I have come without most of my books that sadly I had to leave behind. The only way I can do that is to meander through some of he issues looking at them in small bite-sized chunks.

I find it interesting how many people are screaming that they want the rule of law. Screams are rarely the way to support the rule of law. Now I am speaking metaphorically, as I have been ensconced in southern Arizona thousands of kilometres from the scene and the “screaming” I have heard has been from Canadians on social media.

I understand that people are upset. Particularly farmers unable to get their grain and other inventory to markets, or oil sands workers and pipeline workers unable to earn a living and countless Canadians unable to obtain goods they need that were being delivered by rail. I know a lot of important goods are delivered by rail. As a former CN sleeping car porter, I know the Canadian rail system is important to the country. But so is justice.

I understand that a number of indigenous activists and their allies have been arrested, much to the delight of some those people screaming for the rule of law. There were 3 Indigenous women included among those arrested.

According to the Guardian, “Freda Huson, Brenda Michell and Karla Tait were among seven people detained when Royal Canadian Mounted Police officers – backed by helicopters, heavy machinery and dogs – moved in on the remote camp in north-western British Columbia. These are not the customary instruments whereby the rule of law is imposed upon unarmed Canadian citizens. One of the things I have been surprised at  again, is how non-violent protests of Canadian Indigenous people have been over and over again. Yet, it seems, each time the Canadian police come with heavy artillery. Why is that?

Just consider how you would feel if you were at your home if  helicopters landed in front of you and unloaded heavily armed police Swat teams supported by dogs. Call me a sissy but I would be a bit disconcerted. Even if I had been participating in protests contrary to a court ordered injunction, I would have been disconcerted. I guess I am a sissy. Those Wet’suwet’en women are not sissies; that’s for sure.

But I keep thinking, there must be a better way to do this. A Canadian way.

Pity the Farmers and Oil Workers?

Indigenous Issues

 

The Wet’suwet’en  First Nation issue is very complicated. The truth is murky.  I am finding it difficult to get information about the issue from Arizona. As I understand the facts, 5 out of 6 of the Tribal chiefs and councils under the Indian Act have signed Benefit Agreements with the Pipeline Company. But the hereditary or traditional chiefs are opposed. At least some of them are opposed. I also understand that the pipeline is not actually passing through the territory of those 5 Chiefs and Councils. Their jurisdiction is limited to their reserves. But their land claim might be affected. I don’t know.

One indigenous  person, I heard on CBC radio was opposed to the pipeline and claimed that Coastal GasLink the company that wants to establish the pipeline has signed Benefit Agreements with some First Nations that are not affected because they are easy to persuade (because it does not really affect them). Having a large group of First Nations signing such agreements makes consultation and informed consent sound more  impressive than it really is. On the other hand, Coastal GasLink has to make sure that it consults with as many groups that are affected as possible. If they don’t they will be criticized for that. Where do they draw the line? I sympathize with their plight.

I understand Canadian farmers (many of whom have suffered from poor crops)  are very upset that their grain shipments are held up. I can understand that. I also understand how oil workers or pipeline workers was to get to work to earn a living. That too is perfectly understandable.

Yet I wonder how many of the farmers or workers have ever urged their Member of Parliament to encourage them to have the Canadian government negotiate long-standing land claims made by the Wet’suwet’en people. I would have more sympathy for them if I knew that they had lobbied the government to honourably negotiate those claims as soon as possible rather than wait for the next crisis, as it seems to me they have done.

For example, many Canadian farmers supported the previous Conservative government led by Stephen Harper. Did he make any serious efforts to settle those claims? If he did I was not aware of them. What have the farmers done to help the Wet’suwet’en people?

I have less sympathy for groups that only advocate for what is good for them. That is too easy.

Everyone needs to walk a mile  in the moccasins of the others. That includes protesters and  anti-protesters.

Visitors and Guests: A Canadian Hey Rube

Indigenous Issues,

While I’ve been gone in the United States I have been missing out on an extraordinary incident in Canada that involves many of the things I have been blogging about, and want to blog about going forward. Terrible timing on my part.

As I understand it, Coastal GasLink has obtained legal permits to construct a pipeline in British Columbia. It claims to have the legal right to build that pipeline in accordance with that permit. It has entered into agreements with various parties, including 5 out of 6 Wet’suwet’en  Chief’s and Councils of First Nations that it claims are affected by the pipeline. Yet some Wet’suwet’en, led by Hereditary, or Traditional leaders, object to it. So the Wet’suwet’en people themselves are divided about it. Some of them have tried to stop the development by means of peaceful protest and blockades.

Meanwhile across the country, other First Nations and allies have objected to the development in support of the Wet’suwet’en people and have even blockaded railway lines in other parts of the country. This has resulted in serious hardship to many people in Canada who depend on the railway to deliver supplies to them. At the same time, many businesses and their employees are unable to carry on their businesses or occupations as a result of the blockades, which they say are contrary to law. The say everyone must obey the law. That is what the rule of law means. Everyone must respect the law. After all Canada claims to be a country of laws.

The dispute has generated startling heat from people far from the melee. I think that is because the case involves many issues. And many of those issues are far from resolved and far from simple. It is a genuine Canadian ‘Hey Rube.’

Many are asking who are these Wet’suwet’en and why are they doing these things to us?  Why don’t they obey the law? Don’t they realize the rule of law is the basis of our society? They themselves are divided so how can the rest of us come to an agreement with them, for they are a divided people. Why don’t they get over what happened centuries ago? We all suffered injustice so why don’t they get over it? How can they hold up development that will benefit the entire country and none more so than their own poor communities? Why doesn’t the federal government led by that milksop Justin Trudeau not just enforce the law? Isn’t it really that simple?

I hope to comment on all of these issues and few others besides. I hope in that way to throw some light on the issues.

There are some confusing issues here. 5 out of 6 Wet’suwet’en First Nations have signed “benefit agreements” with Coastal GasLink, the developers of the pipeline. Is that not good enough? Who speaks for the Wet’suwet’en?

To begin with, like other Indigenous groups in Canada, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils. That is not as crazy as it may sound to some. Remember, in Canada we traditionally have 3 levels of government: the national government of Canada, the provincial government in which we reside, like Manitoba in my case. As well, we have municipal governments such as the City of Steinbach or village of Plum Coulee, depending on where we live.

As if that is not enough, now, in some cases, we have to add 2 more additional levels of “government.”  First, there is the band Chief and Council system, that was created by federal legislation– the Indian Act.  Although I intend to comment on many features of this law, I just want to point out at this time that this statute was created by the federal government of Canada, more than 100 years ago. It imposed a law on the First Nations of Canada without their consent. They had no input to its formation. In addition many First Nations have traditional or hereditary chiefs who govern in accordance with traditional laws of aboriginal people in those territories not governed by a Chief and Council under the Indian Act. Yes its confusing.

The first question is what gave Canada the right to do that? Then some of the Indigenous people have their own traditional (often but not always hereditary) chiefs.

After all we must all remember that immigrants from Europe (many were invaders from Europe) came to a country that was not empty. Many Indigenous people lived here and they had their own civilizations and even, laws. Many of us try hard to forget that. But this is an uncomfortable fact and it must be acknowledged. The Europeans were a bit like a guest in someone else’s house. Do the guests have the right to take over and impose their system on those who live there? This actually happened to an uncle of mine. A cousin of his visited him in his home in Vancouver for a few weeks and one day my uncle came home from work and found his cousin had torn down a wall in my uncle’s house and was building an addition to the house for himself. I kid you not. It happened. My uncle was not very happy about it, but what could he do?  How would you feel if this happened to you? Perhaps this is just plain Canadian.