On March 1, Wet’suwet’en hereditary chiefs and Ministers from the federal Liberal government and the B.C. NDP government, announced that they had reached a proposed arrangement in a pipeline dispute that has prompted solidarity protests and blockades across Canada in recent weeks.
Federal Crown-Indigenous Relations Minister Carolyn Bennett and British Columbia Indigenous Relations Minister Scott Fraser would not give details on the proposal, saying it first has to be reviewed by the Wet’suwet’en people.
Fraser said that while the Coastal GasLink natural gas pipeline at the heart of the dispute is already approved and under way, the talks have helped develop a protocol to deal with disputes on such projects in the future.
To be clear, the dispute over Coastal GasLink has not been settled. Minister Bennett acknowledges that.
But Bennett says the deal offered to Wet’suwet’en hereditary chiefs this past weekend is nonetheless significant: it would recognize their nation’s land rights over a vast swathe of territory in northwestern British Columbia, and potentially prevent a quarrel like that which has sparked a nationwide solidarity movement from happening again.
Conservatives play to their base on blockades
Federal Minister Bennett was central in getting serious negotiations underway behind the scenes, as was B.C. NDP Premier John Horgan, provincial Minister Fraser and two former B.C. NDP MPs, Murray Rankin and Nathan Cullen.
In contrast, Canada’s Conservative Party played to the Conservative base by taking a strong law and order approach to the blockades and often using divisive language.
For example, Conservative leadership candidate Peter MacKay deleted and replaced a tweet that praised the actions of “counter protesters” who tried to clear a blockade on CN tracks in Edmonton.
“Glad to see a couple Albertans with a pickup can do more for our economy in an afternoon than Justin Trudeau could do in four years,” Mr. MacKay tweeted on Wednesday, February 19.
The tweet, which linked to a tweet from Global News reporter Fletcher Kent, led to accusations on social media that Mr. MacKay was supporting vigilantism and endorsing potentially illegal actions. It was subsequently deleted.
And then there was Alberta’s Critical Infrastructure Defence Act tabled on February 25 by the United Conservative Party government of Premier Jason Kenney.
The law would make it an offence for individuals or companies to interfere with the use of essential infrastructure, whether publicly or privately owned.
If passed, the law will include fines set at a minimum of $1,000 a day for individuals, with a maximum of $10,000 for the first day, and $25,000 on each subsequent day.
Companies would face minimum fines of $10,000 a day, and a maximum of $200,000.
While federal criminal law already contains the possibility of punishment for such offences as blocking infrastructure, Premier Kenney said the province is adding its own penalties to drive home its pro oil patch, anti-protest message to the rest of Canada.
Background to the conflict
Negotiating an agreement to end the protests was delayed, in part, because of complications related to who spoke for the Wet’suwet’en people.
The Wet’suwet’en are governed by both a traditional hereditary chief system and elected Band Councils. Band Councils are products of the Indian Act of 1876 which established First Nations reserves. Prime Minister Justin Trudeau has long promised a new nation-to-nation relationship with Canada’s Indigenous people with the aim of scrapping the Indian Act.
The difficulty in determining who speaks for the Wet’suwet’en is rooted in the fact that most of their land is not covered by a treaty and remains unceded.
Possible solutions to the conflict over the gas pipeline in these unceded areas are framed by the 1997 Supreme Court Delgamuukw decision. In that decision, the court declared governments can retain control over resource and transportation projects in the area claimed by the Wet’suwet’en hereditary chiefs, but they must also enter into negotiations to settle issues of land management and governance with Indigenous peoples:
“[T]he Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, [these issues will be resolved] through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court.”
As such, the dispute is larger than the pipeline issue and involves other unsettled land rights and title issues related to the the Wet’suwet’en, in addition to the fundamental issue of who has the right to negotiate with governments and corporations.
As indicated above, the protocol agreed to late Sunday does not deal directly with the Coastal GasLink natural gas pipeline but rather, appears to establish protocols for dealing with questions of land rights and titles in the area in the future.
Band Councils sign benefit agreements
There are six Wet’suwet’en band councils, and five have signed benefit agreements with Coastal GasLink, the company responsible for the pipeline. Fifteen other First Nations band councils along the pipeline route that are not Wet’suwet’en, have signed similar agreements. The terms of the impact and benefit agreements with Coastal GasLink are not public but typically include provisions for jobs, training and other benefits.
Moreover, in 2014, 2 Wet’suwet’en band councils also signed benefit agreements with the B.C. government.
Each band council received just shy of $3-million from the B.C. government as part of the agreements. The money is locked up in trusts to fund training, education and cultural programming. Once fuel begins flowing from B.C.’s eastern gas fields to the Pacific port at Kitimat (expected around 2023), both nations will receive annual dividends, like the other 18 First Nations along the route.
In short, the traditional leadership of the Wet’suwet’en people have largely opposed the $6.6-billion pipeline slated to run through their territory in northern B.C., even as 20 elected band councils, including 5 Wet’suwet’en Councils on reserves in the area, signed benefit agreements with Coastal GasLink supporting the project.
And it appears that even with the newly negotiated interim arrangement, most Wet’suwet’en hereditary chiefs continue to oppose the pipeline.
Do protest injunctions need to be re-thought?
The national demonstrations in support of Wet’suwet’en hereditary chiefs opposing a pipeline through their territory, has led to some legal experts suggesting it’s time to reconsider how court injunctions are employed when responding to Indigenous-led protests.
The protests began earlier this month when the RCMP moved into Wet’suwet’en territory to enforce a court injunction against opponents of Coastal GasLink’s natural gas pipeline development in northern British Columbia.
As solidarity protests popped up on railways and roads across the country, CN, CP and other companies sought their own injunctions to remove the blockades, arguing the demonstrations were causing harm to business and to the Canadian economy.
A number of legal experts have said Indigenous resistance to resource development is too complex an issue to be addressed through injunctions in their current, limited form.
“It’s frustrating for me as a lawyer to watch, but I think there’s a relatively straightforward way to really take the edge off and to change the future,” lawyer Mark Gruchy says.
Gruchy has recently had five of his clients cleared of criminal charges related to the Muskrat Falls Hydro protest in Newfoundland. He says the concerns raised in his clients’ case will continue to surface across Canada unless politicians work to “modify the tool” (i.e. injunctions) being used to resolve such resource and land disputes.
As an example, he proposed that in cases related to an Indigenous-led protest, injunctions could be structured to allow for mediated consultation instead of just a heavy-handed order for the protest to stop.
“This issue, really, is a very sharp collision of a major political, social issue with the legal system, and I think that politicians should do their best to … blunt the impact of that,” he said. The current situation is “not good for … the long term health of our legal system,” he added.
B.C. Supreme Court Justice Marguerite Church acknowledged the difficulty of addressing underlying Indigenous law issues in her decision on Coastal GasLink’s injunction application, writing “this is not the venue for that analysis, and those are issues that must be determined at trial.”
Others have said the legal tests applied when considering an injunction request favour corporations, because financial losses are more easily demonstrated than environmental or cultural ones.
A study of over 100 injunctions published last year by the Yellowhead Institute, a First Nations-led think tank based at Ryerson University, found 76 per cent of injunctions filed by corporations against First Nations were granted, compared with 19 per cent of injunctions filed by First Nations against corporations.
Former Attorney General Jody Wilson-Raybould issued a directive in January, 2019, that called on prosecutors to prioritize negotiation over litigation in cases involving Indigenous Peoples.
In 1997, in the Delgamuukw decision., Canada’s Supreme Court declared governments can retain control over resource and transportation projects, but they must also enter into negotiations to settle issues of land management and governance with Indigenous peoples.
Despite the importance of the decision, the province and the federal government have failed to come to an agreement with the Wet’suwet’en people over land rights and title in the 23 years since the decision. In fact, various companies continue to operate in their traditional territories without permission and until very recently, the federal and B.C. governments put little effort into following up on the 1997 decision.
That said, the Trudeau government should be commended for its efforts in ultimately coming to an interim agreement with the Wet’suwet’en people as should B.C.’s Horgan government and former NDP MP’s Murray Rankin and Nathan Cullen.
Conservative Party Leader Andrew Scheer was not invited to a Liberal-led meeting of opposition parties on the issue after an inflammatory speech in the House. In that speech he said:
“Let me be clear Mr. Speaker, standing between our country and prosperity is a small group of radical activists, many of whom have little to no connection to First Nations communities. A bunch of radical activists who won’t rest until our oil and gas industry is entirely shut down.”
Trudeau was right to exclude Scheer from the meeting. The federal Conservatives and Alberta Premier Jason Kenney chose to make an inflammatory appeal to their conservative base during the blockade crisis and showed no understanding of – or interest in – Indigenous reconciliation.
They deserve to be ignored by the government on the issue and hopefully tuned out by the electorate as a whole.