In this guest post, lawyer Noah Ross discusses his experience offering legal observer training in Wet’suwet’en territory.
Sierra Club BC’s statement of solidarity. We stand behind Indigenous jurisdiction and the right to free, prior and informed consent.
FOR IMMEDIATE RELEASE:
January 28, 2020
While Coastal GasLink has approval from the B.C. Environmental Assessment Office, a condition of the approval is that construction can’t proceed until the Condition 1 Final Report #2 is approved. This report has not yet been approved by the Environment Assessment Office.
The Condition 1 Final Report assesses the Economic and Social Effects of the proposed project, among other impacts. Regarding Community and Regional Infrastructure and Services, the report states that the assessment of potential adverse effects was completed as part of the original environmental assessment application and that no further studies are required. However, since the time of the original environmental assessment application in 2014, the Unist’ot’en have built and begun operating a wilderness lodge and healing center.
The investment in buildings and infrastructure is valued at over $2 million and the institution has just received $400,000 from the First Nations Health Authority to continue to run land-based trauma and addictions treatment programs at the site.
“No construction can happen until this report is approved,” said Sierra Club BC’s campaigns director Caitlyn Vernon. “And to approve this report without fully considering the impacts of this proposed pipeline on the Unist’ot’en wilderness center and healing lodge would be profoundly problematic. I doubt a non-Indigenous wilderness lodge would be omitted from a report such as this.”
Campaigns Director, Sierra Club BC
A special guest blog from Kesia Nagata
Kesia Nagata is a BC-based singer-songwriter living on Gitxsan territory. As a community organizer and ally, she works with Hereditary Chiefs on projects they design to increase the security and sovereignty of their food and energy supplies. Kesia recounts some of her experiences over three days in early January witnessing Wet’suwet’en land defence, as police force was used to raid and enter the Unist’ot’en and Gidimt’en checkpoints to make way for Coastal GasLink fracked gas pipeline work. These vignettes are from a small camp set up by supporters at Kilometre Marker 27 where the RCMP blocked further access to the Unist’ot’en camp and community in northern BC. All photos are by Kesia.
It’s a five hour round trip for me to wait outside the orange cone line patrolled by BC’s most friendly policemen, in snow or in 20 below. The makeshift camp, now features a permanent campfire and a wall tent, wood stove and propane cooker perpetually warming soups and chili. This sprang up virtually the second would-be supporters realized they were barred from accessing the Unist’ot’en and Gidimt’en camps where their families, friends, house-group members, and constituents waited for militarized police forces to arrive. Matriarchs and Hereditary Chiefs, representatives from the Office of the Wet’suwet’en, members and chiefs of the neighbouring Gitxsan nation, the mayor of Smithers, the MP for Skeena-Bulkley, reporters from CBC, the Star, APTN, concerned residents, a guy named Rodney from Cortes Island, farmers, musicians, activists from out east and down south, kids, moms – sitting fireside is a veritable cross section of northern BC, and everybody is getting along just fine, drinking from actual tanks of Tim Hortons coffee. When I take off my boots to dry my socks, Rodney offers me a new pair for keeps. The culture at 27 is a quiet one. There is no cell service and no contact with the outside world. There is no official purpose, except an unspoken agreement to witness, and to wait.
The more senior police officers mingle with everyone else, sheepishly inching closer to the fire, and while most ignore them unless asking for information, many people – especially, I notice, Wet’suwet’en women – go out of their way to talk to them. “This is my home,” they tell them, bright eyed and smiling. “Welcome to Wet’suwet’en Territory. It’s such a shame you’re keeping me from visiting some of my favourite places. This pipeline you’re helping them build? It’s going to destroy our precious way of life. I won’t be able to teach my kids what my parents and grandparents taught me.” And then they bump up shoulder to shoulder with the guy to scroll through their phone snaps and show them all the beauty that is at risk, smiling and chatting the whole time. Sometimes the cops pull out their own phones to show off their own favourite landscapes.
We’re quiet and unaware during the raid on Gidimt’en, with no knowledge of what’s actually happening 17 kilometers west of us. Many of us believed the injunction gave defenders until the 10th to surrender, and aren’t expecting violence today. Others are tense and quiet, knowing something is going on that these approachable, obfuscating policemen won’t tell us. Later we will hear from an eye witness who managed to escape arrest about how the women held the line, linked arm in arm and singing, speaking directly to the armed police officers: “Don’t you understand that we love you? We’re doing this for you, for all of us.” We hear of how they reminded the Aboriginal Liaison Officers of the perpetuation of violence against indigenous women since colonization, of the violence and danger that the man camps Coastal GasLink plans to establish will present to them. We hear of how that Liaison team promised to keep the peace while Coastal GasLink removed the obstructions, but instead allowed their fellow RCMP officers, many dressed as tactical soldiers and wielding fully automatic weapons, to threaten these same women.
When I watch Molly Wickham’s account the night she is released, something in me that has remained removed and stoic shifts. For some reason, it is the part where they came at them with chainsaws that sticks in me and breaks me open. I’m holding my phone and watching the video and crying in the bathroom as Molly remembers. I’m realizing some part of what it might have felt like, not knowing where the line was for those men. Not knowing what their orders were, no longer trusting that they wouldn’t dare hurt you. Not knowing how afraid to be, or not be, and so finding yourself terrified. For the rest of the day, in quiet moments, I imagine men in uniform advancing with chainsaws and blank expressions.
The non-Indigenous grandmother who was arrested and then immediately released makes it clear that she was treated better than other women there, maybe in part due to her age, but most likely due to the colour of her skin. The others have not yet been released, and nobody’s sure if they’re in Houston or Prince George, or what it will take to get them out. I am not Indigenous to North America, but with my long dark hair and half-Asian eyes, I have often been mistaken as such. Where would I be now if I had been on that line?
I am a newcomer here. My family was drawn to the North for many reasons, not least of which was the incredible strength we recognize in the Wet’suwet’en, the Gitxsan (whose territory we live on), and the nearby Tahltan who have all fought incredible battles on the ground and in the courts to maintain their right to govern and manage their people and territories according to traditional law and hereditary leadership. As a community organizer, I work with Hereditary Chiefs on projects they design to increase the security and sovereignty of their food and energy supplies. And walking or driving with them over these seemingly endless northern landscapes, running my fingers across maps of the territories tacked to office walls, hearing the names of Chiefs and territories and mountains and rivers and asking to hear them again and again until some of them stick in my memory, I begin to realize that nothing – absolutely nothing – is not accounted for.
Now when I drive, I watch for the landmarks that tell me I’ve crossed into the next Lax’yip or Yintah. There is no such thing as wilderness, as Crown Land, as the Wild West. It’s all someone’s, and that someone has tended to it since time immemorial. This is a truly basic realization, but as an amsiwaa or non-Indigenous person it colours in a blank map with vivid images. It makes me step more carefully everywhere I go, so as not to disturb someone else’s space. My friend tells me that the chiefs used to know their own territories so well, that when a moose walked across it their hair would stand on end.
I’m paying attention to cognitive dissonance on three different levels. There are the cops at 27, presenting as Nice Guys but going stony-faced and combative when asked why they are supporting such a god-awful project – they say over and over like a mantra keeping their skin together that they’re doing their jobs. Then the RCMP at Gidimt’en, promising a controlled process and instead delivering chaos, forcibly removing First Nations people from their own land yet again. And then the provincial and federal governments preaching UNDRIP and reconciliation while ramming through unceded Indigenous land with cold blatant force, turning those sworn to “serve and protect” into a corporate militia. How long, I wonder, can a person or institution say one thing and do another before self-destructing?
January 10, 2019
Over this past week, there has been an explosion of media coverage about Indigenous rights and title as a result of the RCMP raid of both the Gitdumden and Unist’ot’en camps. On Tuesday January 8, tens of thousands of people showed up to solidarity events held in cities and towns across Canada to denounce the use of police force against Wet’suwet’en people asserting their rights on their own unceded territory. Sierra Club BC stands in solidarity with the Wet’suwet’en people as they assert their jurisdiction over their unceded lands and waters (read our statement here).
In a statement released yesterday, hereditary Wet’suwet’en chiefs stated that in order to avoid violence they have reached an agreement temporarily allowing Coastal GasLink employees to work behind the checkpoint, but that the pipeline will never be built on their territory. These chiefs are asking people around the world to support them in their ongoing struggle to assert their rights and title and protect their lands and waters.
A number of our membership, wanting to better understand the situation, have reached out to us to ask questions. We’ve begun to answer these to the best of our ability below. We also encourage people to keep doing their own research. The Office of the Wet’suwet’en provides detailed information on the nation’s hereditary chiefs and governance system. For analysis of Indigenous legal orders and hereditary governance systems more broadly, we recommend you check out the Indigenous Law Research Unit at the University of Victoria which hosts a wealth of resources on their website.
Who are the Unist’ot’en?
The Unist’ot’en (C’ihlts’ehkhyu / Big Frog Clan) are one of five clans of the Wet’suwet’en Nation. Wet’suwet’en territory spans 22,000 square km in northwest BC west of Smithers. It has never been ceded or surrendered by the Wet’suwet’en people, who have occupied their territory for millennia.
The Unist’ot’en checkpoint was established on April 1, 2009. Since then a cabin, healing lodge and pit house have been constructed, as well as a bunkhouse for visitors. The camp is used year-round for healing retreats, culture camps and living. The gated entrance to the camp is on a forest service road about 120 km southwest of Smithers at the Morice River Bridge. Coastal GasLink proposes to build a natural gas pipeline to cross the bridge. The 670 kilometre pipeline project would link the fracking fields of Northeastern BC with a huge liquid gas export terminal in Kitimat. Called LNG Canada, this project is made up of oil and gas companies from China, Japan, Korea and Malaysia, along with Royal Dutch Shell.
Under the Wet’suwet’en hereditary governance system, the Unist’ot’en House Chiefs from the clan have full decision making power (in consultation with their House members) over the lands and waters on their territory. The Unist’ot’en chiefs have not given their consent for the pipelines to go through their territory and say that they never will.
Coastal GasLink applied for an injunction in November 2018 in order to gain access for its workers to cross the checkpoint to start clearing the pipeline route. The BC Supreme Court issued a temporary injunction in December, prohibiting anyone from blocking the bridge, as well as ordering the checkpoint to be dismantled within 72 hours. The Unist’tot’en have refused to dismantle their checkpoint. However, following the destruction of property and arrests at Gitdumden by RCMP earlier this week, the Unist’ot’en are temporarily allowing Coastal Gas behind the checkpoint to work.
Who are Gitdumden?
The Gitdumden are another of the five Wet’suwet’en clans, and they neighbor Unist’ot’en. When the Unist’ot’en camp declined to take down their checkpoint, a decision was made in the feast hall by all Wet’suwet’en leadership that the second Gitdumden checkpoint would be established. The BC Supreme Court injunction was expanded on January 4 to include the Gitdumden checkpoint as well. On the afternoon of Monday January 7, police broke down a wooden gate and arrested 14 people at the Gitdumden Checkpoint. All of these individuals have now been released, and a number of them have been charged with court dates pending.
How does the hereditary governance system of the Wet’suwet’en people function?
The Wet’suwet’en peoples have occupied their territory for thousands of years and have a complex and sophisticated governance system. Just as Canadian law takes years of study and learn, so too does Wet’suwet’en law.
Indigenous legal scholar John Borrows has provided the following overview, “For millennia, their histories have recorded their organization into Houses and Clans, in which hereditary chiefs have been responsible for the allocation, administration and control of their traditional lands. Within these Houses, chiefs pass on important histories, songs, crests, lands, ranks and properties from one generation to the next. The passage of these legal, political, social and economic entitlements is witnessed through Feasts. These Feasts substantiate the territories’ relationships. A hosting House serves food, distributes gifts, announces the House’s successors to the names of deceased chiefs, describes the territory, raises totem poles and tells the oral history of the House. Chiefs from other Houses witness the actions of the Feast and at the end of the proceedings they validate the decisions and declarations of the Host House.” 
All of the hereditary leaders from all of the five clans have withheld consent for new pipeline construction across Wet’suwet’en territories.
What is the formal relationship of the hereditary governance system of the Wet’suwet’en people to the elected band council system?
In a press conference yesterday, Premier John Horgan referred to the challenge of bringing together the “historic band councils” with the “emerging” hereditary systems of governance. In fact, the relationship is reversed. While the hereditary system has existed for millennia and precedes European arrival on the continent, the Band council system was introduced by the federal government in 1876 and imposed on Indigenous Nations through the Indian Act, as part of a post-Confederation assimilation policy.
As it is currently structured, each reserve community within a territory has an election for Chief and Council every few years. The elected Chief and Council under the Indian Act are primarily responsible for things that happen on reserves like water, housing, schools, infrastructure and other issues that affect membership. There are five elected band councils on Wet’suwet’en territory, four of whom have signed agreements with Coastal Gaslink. However, hereditary leaders say those agreements don’t apply to the territories off reserve.
The imposition of the Indian Act band council system over top of hereditary systems has created ongoing tensions in many communities.
The CBC’s Angela Sterritt has written an excellent piece on the differences between elected and hereditary leadership.
What is the relevance of the Delgamuukw decision in relation to the Wet’suwet’en?
Many Canadians have heard of the important 1997 Delgamuukw decision by the Supreme Court of Canada, which recognized that Aboriginal title continues to exist over land and water where Indigenous nations have never signed a treaty with the Crown. The territory referred to in the court decision is Wet’suwet’en territory as well as neighboring Gitxsan territory.
The Delgamuukw case was framed around traditional hereditary leadership. Delgamuukw is a chief’s name in the Gitxsan Nation, passed down through generations, and Delgamuukw was one of dozens of plaintiffs in the case, composed of hereditary chiefs from both the Gitxsan and Wet’suwet’en Nations. Together those leaders forced the Canadian courts to affirm the legitimacy of their oral histories, traditional laws and continuing governance of their lands.
Peter Grant, the lawyer for the Wet’suwet’en hereditary chiefs has stated that hereditary chiefs need to give their free, prior and informed consent in order for the pipeline to be built: “We agree the rule of law has to apply, but doesn’t that mean that when there’s recognition of the proper title holder you deal with the proper title holder?”
On January 9, Unist’ot’en Camp released a statement on the emerging situation, saying “We paved the way with the Delgamuukw court case and the time has come for Delgamuukw II. We have never had the financial resources to challenge the colonial court system, due to the enormous price tag of an Aboriginal title case. Who will stand with us to make sure this pipeline does not go through?”
What is the relevance of the United Nations Declaration on the Rights of Indigenous Peoples to this conflict?
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) represents the basic principles and minimum standards that should guide states in their dealings with Indigenous peoples.[i] Canada became a full signatory (removing previous objections) to UNDRIP in 2016, and both the federal and BC provincial governments have committed to full implementation of UNDRIP. The Canadian government defines UNDRIP as a document that describes both individual and collective rights of Indigenous peoples around the world.[ii]
A number of articles of UNDRIP are relevant to this conflict, in particular Article 10 which states: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”[iii]
So what does all of this mean?
At the heart of this conflict is conflicting perspectives over who holds the ultimate jurisdiction for decisions made about resources. While much of the media is framing this as a “pipeline protest” the Wet’suwet’en hereditary leadership view this as exercising their legal right to assert their authority to control what occurs on their territory.
The Wet’suwet’en leadership are getting ready to launch another title case to protect their territory and assert their jurisdiction. They have launched a fundraising page to support this future legal challenge.
We hope this clarifies the complex nature of what at first might appear to simply be opposition to a pipeline, but is in fact, a much more complex case of who holds authority and how natural resources are managed on unceded territories.
What can I do to support?
Donate to the Unist’ot’en Camp Legal Fund to support the Wet’suwet’en rights and title case.
Donate to the Gidimt’en clan
Donate to the Office of the Wet’suwet’en by mailing a cheque to: 205 Beaver Road, Suite #1 Smithers B.C. V0J 2N1 (We will provide updates if/when other ways of donating become available).
Host a solidarity event: See the International Solidarity with Wet’suwet’en event page.
Call provincial and federal ministers:
BC Premier John Horgan (250) 387-1715
Minister of Public Safety Mike Farnworth (250) 356-2178
Minister of Indigenous Relations and Reconciliation Scott Fraser (250) 953-4844
Attorney General David Eby (250) 387-1866
MLA for Stikine (Wet’suwet’en territory) and Forests Minister Doug Donaldson (250) 387-6240
Energy Minister Michelle Mungall (250) 953-0900
Prime Minister Trudeau (613) 992-4211
Federal Minister of Crown-Indigenous Relations Carolyn Bennett (613) 995-9666
Follow Twitter updates on the ongoing situation in Wet’suwet’en territory:
Unist’ot’en Camp @UnistotenCamp (follow @unistoten on Facebook or go to unistoten.camp)
Gidimt’en Checkpoint @gidimt (follow @gidimten_checkpoint on Instagram and @wetsuwetenstrong on Facebook)
Chantelle Bellrichard @pieglue (Indigenous journalist)
Michael Toledano @M_tol (Photographer/journalist)
Amber Bracken @photobracken (Photographer/journalist)
Jesse Winter @jwints (Journalist)
Harsha Walia @HarshaWalia (Ally)
#WetsuwetenStrong #Wetsuweten #Unistoten #UnistotenCamp
Indigenous sources of news, commentary and information on Indigenous issues, rights and title:
Union of BC Indian Chiefs @UBCIC ubcic.bc.ca
Yellowhead Institute @yellowhead_institute (Indigenous think tank) yellowheadinstitute.org
Indigenous Law Research Unit @ilruuvic website
Aboriginal Peoples Television Network @APTN aptn.ca
Walking Eagle @TheEagleist (Indigenous satire) walkingeaglenews.com
Tracey Lindberg @traceylindberg (Cree writer, scholar)
Kris Statnyk @gwitchin_kris (Gwitchin lawyer, Mandell Pinder LLP)
Jess Housty @heiltsukvoice (Heiltsuk band councillor)
Angela Sterritt @AngelaSterritt (CBC Indigenous)
Duncan McCue @duncanmccue (CBC Indigenous)
Tanya Talaga @tanyatalaga (Anishinaabe writer, journalist)
Hayden King @hayden_king (Anishinaabe writer, educator)
Christina Gray @stina_gray (Ts’msyen/Dene legal scholar)
Jesse Wente @jessewente (Ojibwe broadcaster, writer)
CBC Indigenous @CBCIndigenous cbc.ca/news/indigenous
Robert Jago @rjjago (Nooksack Tribe/Kwantlen writer, blogger) rjjago.com
âpihtawikosisân (Chelsea Vowel) @apihtawikosisan (Métis writer, educator, podcaster) apihtawikosisan.com
Eriel Deranger @ErielTD (Athabasca Chipewyan First Nation, Indigenous Climate Action Executive Director) indigenousclimateaction.ca
Cindy Blackstock @cblackst (Gitksan child, youth and family researcher and educator) Indigenous Knowledge Portal
Ryan McMahon @RMComedy (Anishinaabe comedian, writer, podcaster) rmcomedy.com
Makoons Media Group @MakoonsMedia (digital Indigenous storytelling) makoonsmedia.org
Indian & Cowboy @indianandcowboy (Indigenous podcasts, opinion, arts and culture) indianandcowboy.com
Red Man Laughing @RMLPodcast (Indigenous podcast) redmanlaughing.com
StoriesFromTheLand @SFTLpodcast (Indigenous podcast) storiesfromtheland.com
 John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” Osgoode Hall Law Journal (1999) 37 Osgoode Hall L.J. 537-596
[i] J. Anaya, UN Human Rights Council, Report of the Special Rapporteur on the Situation
of Human Rights and Fundamental Freedoms of Indigenous People, A/HRC/12/34, July 15 (New York: United Nations General Assembly, 2009), https://documents-dds-ny. un.org/doc/UNDOC/GEN/G09/145/82/PDF/G0914582.pdf?OpenElement.
Feature image by Jen Castro