Course:JRNL503B/Wet'suwet'en Land Conflict

From UBC Wiki

Brief History

Nationwide protests[1] have been observed across Canada through 2019-2020 opposing the construction of a 670-kilometer fracked gas pipeline by the company Coastal GasLink, a subsidiary of TC Energy, which will run from Dawson Creek to Kitimat, B.C., through twenty First Nation territories, including the Wet'suwet'en. There is also another proposed project by Chevron, the Pacific Trail pipeline[2] that would transport natural gas from Summit Lake to Kitimat for conversion to LNG. There have been conflicting views amongst First Nations as to the benefits and disadvantages the pipeline could bring, as well as the legitimacy of such a project. Many feel as if the pipeline, that is widely referred to as the ‘natural gas pipeline’, will significantly harm the environment. It is speculated that it has the potential to release a ‘carbon bomb’[3] of 3.5 million tonnes of carbon dioxide a year from the processing plant alone. Some[4] also feel that the project will bring work opportunities, education and trade experience to First Nation communities.

Wet'suwet'en Governance

Wet'suwet'en Clan and Houses

Five of the six[5] elected band councils within the Wet'suwet'en First Nation have signed benefit agreements with Coastal GasLink. These include Witset First Nation, Skin Tyee Nation, the Nee Tahi Buhn Band, Ts'il Kaz Koh First Nation (Burns Lake Band) and the Wet'suwet'en First Nation.

The Band Councils were a creation of the Canadian government under the amended 1951 Indian Act[6] which provided them some authority to manage reserves. However, the right to manage the 22,000 square kilometers of the Nation's traditional and unceded territory lies with hereditary chiefs and their clans according to the Supreme Court judgment of Delgamuukw v British Columbia[7], 1997. Band electives do not hold authority to enter into agreements with industry or governments regarding projects on traditional lands.

There are five clans within the Wet’suwet’en Nation and two or three houses within each clan. The highest order of the house is the hereditary chief but the position is currently vacant for four of the houses[8]. There are currently nine Wet’suwet’en hereditary chiefs, eight of whom have strongly opposed the CGL pipeline.

Hereditary chiefs who signed an eviction letter to CGL demanding workers off their lands in January 2020:

  • Knedebeas (Warner William), Yex T'sa Wilk'us (Dark House)
  • Woos (Frank Alec), Cassyex (Grizzly House)
  • Madeek (Jeff Brown), Anaskaski (Where It Lies Blocking the Trail)
  • Gisday'wa (Fred Tom), Kaiyexweniits (House in the Middle of Many)
  • Hagwilnegh (Ron Mitchell), G'en Egh La Yex (House of Many Eyes)
  • Na'Moks (John Ridsdale), Tsa K'en Yex (Rafters on Beaver House)
  • Smogelgem (Warner Naziel), Tsaiyex (Sun House)
  • Kloum Khun (Alphonse Gagnon), Medzeyez (Owl House)

Recent Events

Wet'suwet'en land defenders have set up at least three checkpoints along the Morice West Forest Service Road including one near the Unist'ot'en healing village, about 120 kilometers southwest of Smithers, British Columbia. The intention behind the checkpoints is for outside entities to gain permission from title holders to enter that land. The Unist’ot’en, a clan within the Wet’suwet’en Nation, originally set up a cabin and resistance camp[9] on their land on April 1, 2009. This was in opposition of several proposed tar sand and fracking gas pipelines by companies[10] including Chevron, TransCanada, Enbridge and Coastal Gas Link, without consent from the Unist’ot’en. The hereditary chiefs of the Wet’suwet’en demand outside entities who wish to enter or utilize their lands obtain free, prior and informed[11] consent from the hereditary chiefs of that Nation. The camp has since become a healing lodge and is utilized year-round.

On November 26 2019, the B.C. legislature passed Bill 41, implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[12]. The bill was created together by the B.C. government and the B.C. First Nations Leadership Council. UNDRIP supports the rights of indigenous communities to govern their unceded territories and expresses the need to obtain free, prior and informed consent from indigenous communities in articles 10 and 28. UNDRIP also outlines the expectation of recognizing indigenous forms of self-governance in article 35: “Indigenous peoples have the right to determine the responsibilities of individuals to their communities”. In doing so, the policy protects the rights of the hereditary chiefs to determine the governance of their lands.

In November 2018, Coastal GasLink applied for an injunction to remove any obstacles or opposition preventing the construction of the pipeline, including the Unist’ot’en checkpoint. The injunction was permitted by the B.C. Supreme Court in December with an order that the checkpoint be removed within 72 hours[13]. The Unist’ot’en refused to dismantle their checkpoint and their neighbouring clan, Gidimt’en set up a second checkpoint in support of the protest. The movement has since gained nationwide support and global media attention.

In early January 2019, the RCMP forcibly removed and arrested 14[14] Wet’suwet’en land defenders at the Gidimt’en camp in accordance with the court order. To prevent further conflict, Wet’suwet’en hereditary chiefs met[15] with RCMP and Coastal Gaslink representatives to allow temporary access to the area for pre-construction in accordance with the interim injunction. The chiefs specified that they were not giving consent for the project.  

On December 31 2019, B.C. Supreme Court Judge Marguerite Church issued an injunction[16] against Wet’suwet’en land defenders who were preventing access to the pipeline construction site, reaffirming the injunction that was put in place back in January of 2019. She ruled that CGL met all of the required permits and authorizations to continue the project.

On January 5 2020 the Wet’suwet’en hereditary chiefs issued an eviction notice[17] to Coastal GasLink stating all contractors and staff must leave the area immediately in accordance with Wet’suwet’en law. On January 13 B.C. Premier John Horgan made a public announcement[18] stating that the pipeline project will be built despite the eviction notice and protests against the project. In early February, a seven day discussion period took place between hereditary chiefs, the B.C. government and CGL. They failed to come to a mutual agreement and many arrests of land defenders took place the following days. Six protesters[19] were arrested near the Unist’ot’en camp on February 6, with 4 more the following day and 11 arrests on February 8 at a warming room. These arrests led to nationwide protests against the pipeline and a widespread knowledge of the conflict.

In May 2020 a Memorandum of Understanding[20] was signed by the chiefs of the Wet’suwet’en Nation with the B.C. provincial government and the Canadian government. The MOU recognizes that rights and title are held by house groups within the Wet’suwet’en Nation under their own system of governance. Negotiations are on-going and the MOU says transfer of jurisdiction to the Wet’suwet’en will be gradual and that jurisdiction may be shared in certain cases with the federal and provincial governments. The MOU does not address the construction of the CGL pipeline which is currently under construction.

Legal History – Delgamuukw-Gisday'wa v British Columbia

A police raid on the Unist'ot'en Camp. (Image: @UnistotenCamp on Twitter)

In 1997, the Supreme Court of Canada recognized Aboriginal title, which affirms Indigenous Peoples' exclusive right to their traditional land. In that historic case, the court stated that Aboriginal title is an "existing aboriginal right" and an ancestral right protected by section 35(1) of the Constitution Act, 1982[21].

The ruling dates back to a 1984 case when Gitxsan[22] and Wet'suwet'en[23] hereditary chiefs decided to unite as one voice and take the B.C. provincial government to court[24]. The two First Nations filed a land title action in the B.C. Supreme Court claiming over 58,000 square km of land and water in northwestern British Columbia[25][26].

The Indigenous nations wanted to protect the land from logging (clear-cutting)[27] and to be compensated for their loss of land. Additionally, they wanted their title officially recognized over their respective lands.[28]

Initially, the case was defeated in 1991 when judge Allan McEachern ruled that any title was extinguished when B.C. joined Confederation. The two First Nations appealed McEachern's ruling, and in 1993 the Court of Appeal of British Columbia ruled that the government must consult with Indigenous peoples[29] before they approve projects (industry) that may infringe on Indigenous rights[30]. However, the court of appeals ultimately upheld McEachern's ruling that they did not have title to the land they sought to claim.

In 1997 the Gitxsan and Wet'suwet'en halted their efforts to undertake treaty negotiations with B.C. and instead headed to the Supreme Court of Canada. Six months later, the claimants won.

The court ruling was historic for several reasons. First, it ruled that the provincial government had no right to extinguish Aboriginal title. That is, Indigenous peoples are entitled to title rights over the land and that extends to extracting resources from the land[31]. It also stated that, following the Van der Peet Case (1996)[32], oral histories (given by designated Gitxsan and Wet'suwet'en nation members during their initial suit) are a valid form of evidence and should be treated as equal to other forms of evidence. The court also explained the content and extent of Aboriginal title, as explored previously in the Calder Case (1973)[33].

The Supreme Court did set some parameters, though. Indigenous territory, or traditional lands, cannot be used in such a way that is incompatible with the nature of Indigenous people's attachment to that land (for example, polluting a river that they traditionally fished in with industry). If that were the case, the Aboriginal title would have to be forfeited. What's more, First Nations can only cede traditional territory to the Crown.

Ultimately, Delgamuukw-Gisday'wa v British Columbia[34] was an unprecedented ruling because it was the first time in Canadian history that the Supreme Court of Canada recognized an exclusive and ancestral right to the land in the form of Aboriginal title. It also gives a more thorough definition of what constitutes Aboriginal title.

The Delgamuukw-Gisday'wa v British Columbia case is one of many examples of intergenerational land defence and Indigenous people's continuing anti-colonial struggle.

Indigenous Law and Colonial Law (Indian Act)

It is important to distinguish between indigenous law and colonial law and realize that the latter had actively tried to suppress the former since colonial contact. On the contrary, the Wet'suwet'en has had its own system of law since time immemorial.

The Feast Hall, also known as the potlatch, is the central precolonial Wet'suwet'en governance institution. In 1880, the Indian Act was passed, and four years later, the potlatch was outlawed[35]—suppressing the main governance institution for the Wet'suwet'en (and other First nations). What's more, in 1927 an amendment to the Indian Act made it illegal for Indigenous people to raise money or hire lawyers[36], barring them from legally pursuing land claims.

By 1951, the Canadian government redacted some of the more oppressive sections of the Indian Act (such as Section 141) following the Second World War[37]. Indigenous people could once again openly practice their cultural customs, such as holding potlatches, and practising commercial fishing. The amended law also meant they could hire legal counsel so they could pursue land claims. Still, by that time, Indigenous communities were ravaged by disease like smallpox and the Spanish flu, residential schools, and other forms of cultural genocide[38].

Since colonial contact, the Wet'suwet'en have organized and sought to claim land rights, which they never ceded by signing treaties or through willful surrender[39]. It is worth mentioning that when the Gitxsan and Wet'suwet'en went to the Supreme Court in 1997 because their laws conflicted with Canadian laws, it was a foreign court to them[40]. Ultimately, the colonial law conceded.

Media Coverage

On January 13th, 2020, RCMP stated[41] that only accredited journalists approved by senior officers would be permitted access to the Wet'suwet'en territory, due to the enforcement of the checkpoint and exclusion zone in the territory.

However, on February 6th, 2020, RCMP officers detained journalists[42] for documenting police activity in the Wet'suwet'en territory. Following public backlash, the RCMP stated[43] that it "will make every reasonable effort to allow media personnel to get as close as possible to the enforcement area".

RCMP checkpoint limiting media access to Wet’suwet’en territory

Despite press freedom concerns and unlawful detention of journalists in early February 2020, the Wet'suwet'en crisis was widely covered by Canadian and international media.

A number of mainstream Canadian outlets framed the conflict as routed to the violation of law and order. For example, on February 12th, 2020, The National Post[44]'s columnist John Ivison reported “Canada is slowly turning from democracy to mobocracy, as the rule of law is tested from coast to coast". On the same day, The Globe and Mail[45] published an editorial piece stating "It is also essential to society’s sense of legality. Patience is a virtue but, at some point, it becomes incumbent on the police to remove protesters who defy the courts".

On February 20th, 2020, CBC News published[46] "It's none of their business': The Wet'suwet'en people who want the protesters to stop" that depicted the indigenous anti-protesters' side of the conflict. Later, on February 26th, 2020, CBC raised the issue[47] of unfair reporting on the Wet'suwet'ten crisis in Canadian media in The Weekly with Wendy Mesley.

The biased and intricate coverage by Canadian legacy media was thoroughly criticized by a number of outlets, such as Passage[48], NOW Magazine[49], The Star[50], Canada Land[51], etc.

On February 28th, 2020 British The Guardian[52] reported on the protests as “revolution”, highlighting the need for the environmental policy change and calling out the Canadian government’s inconsistent approach to it.

On March 1st, 2020, Al Jazeera[53] released a detailed coverage on the events, depicting the conflict between Indian chefs and councils, and the international impact of it.

Solidarity actions in support of Wet'suwet'en land defenders

A banner painted with the words "RCMP OFF WET’SUWET’EN LAND" and the hashtag #WETSUWETENSTRONG in blue and red lettering, as well as a Haudenosaunee flag on a stopped liquefied petroleum gas tank car in Vaughan, Ontario, at a protest event on February 15, 2020 in solidarity with Wet’suwet’en hereditary chiefs opposing the Coastal GasLink Pipeline.
Wet’suwet’en solidarity banner on oil tank car in Vaughan, Ontario, on February 15, 2020. (Image: Wikimedia Commons)

Following the RCMP raids on Wet’suwet’en territory between February 6, 2020 and February 10, 2020 to enforce the B.C. Supreme Court injunction granted to Coastal GasLink in December 2019, the resulting arrests and eviction of Wet’suwet’en members from their land sparked waves of solidarity actions from Wet’suwet’en supporters on national and international levels.

In response to the RCMP’s removal of Wet’suwet’en land defenders, including Wet’suwet’en hereditary chiefs, from their territory, supporters in other parts of the country began blocking Canadian transportation infrastructure across the nation and participating in other acts of civil disobedience to express their solidarity. This included blockades of major roads[54], bridges[55], shipping ports[56], and railway lines[57] to halt train traffic, with many of these actions lasting for multiple days or even several weeks throughout February 2020 and into the beginning of March 2020. Several of these actions also led to further arrests[58] of Wet'suwet'en supporters.

In British Columbia, Wet’suwet’en supporters set up blockades at port locations in Vancouver and Delta[59] in addition to occupying major traffic[60] intersections[61] in Vancouver. Additional events in support of Wet'suwet'en land defenders were held throughout the province in BC, including Kelowna, Nelson, Smithers, Tofino, and Victoria.

A group of people stand in front of a building with various protest signage that include slogans in support of Wet'suwet'en.
Wet'suwet'en supporters in front of the Canadian Consulate in San Francisco on February 7, 2020. (Image: Peg Hunter)

A nationwide student walkout[62] was also organized to express solidarity with Wet'suwet'en land defenders and included the participation of students from schools in cities such as Toronto, Montreal, Vancouver, Halifax, Calgary, and Winnipeg.

Railway blockades took place along routes through British Columbia[63], Ontario[64], and Quebec[65], including a major rail blockade of a Canadian National Railway line set up by Tyendinaga Mohawk Territory, near Belleville, Ont.,[66]which halted passenger train traffic between Montreal and Toronto. The blockade near Tyendinaga Mohawk Territory significantly disrupted the Eastern Canada section of the Canadian National Railway network, as there are no alternate routes for the area of Eastern Ontario that the rail line travels through. These rail blockades garnered significant additional media attention for the economic impact[67] caused through their disruption of railway freight, eliciting official responses from government officials and pressuring the Canadian government[68] to heed its own calls for reconciliation with Indigenous Peoples.

Global solidarity actions were also organized internationally, including marches, rallies outside Canadian embassies, and film screenings in support of the Wet’suweten Nation. Events were held around the world including in locations such as Berlin, Chicago, Detroit, Dublin, Las Vegas, London, New York City, Portland, Scotland, and Sweden. Many of these events included the use of hashtags like #ShutDownCanada, #AllEyesOnWetsuweten, and #WetsuwetenStrong[69], joining them to larger movements for Wet’suwet’en and Indigenous solidarity, and to share information regarding the latest ongoing updates from Wet’suwet’en territory and for locally organized solidarity actions.


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