The hereditary chiefs of the Wet’suwet’en Clans of British Columbia are protesting the British Columbia pipeline that is being built by the TransCanada subsidiary company Coastal GasLink. The Royal Canadian Mounted Police (RCMP) in British Columbia are carrying out an interim injunction from the British Columbia Supreme Court issued in mid-December 2018. The decision allows the company to begin pre-construction of a 416-mile pipeline that will cross the traditional territory of the Wet’suwet’en Clan. TransCanada claims to have permission from all twenty of the elected councils representing the First Nations of British Columbia for the entirety of the project, but demonstrators argue that the project is moving forward despite the outcry from the hereditary leaders of the Wet’suwet’en Clans. By moving forward with the British Columbia pipeline, the TransCanada company is violating a 1997 Canadian Supreme Court decision, Delgamuukw v. British Columbia, which protects the existing aboriginal rights and title to land in the territory.
The First Nations of British Columbia have a distinct political and legal system that predates colonization, with both hereditary chiefs and band councils speaking on behalf of the community. Hereditary chief is a title passed down through families, and the hereditary chiefs’ roles are largely viewed as protecting the territory and the interest of the people. The Wet’suwet’en hereditary chief structure is made up of five clans and thirteen houses. Band councils, on the other hand, are a form of elected governance introduced by the Canadian government through the Indian Act of 1976. The representatives on band councils are subject to elections held every two years. The band councils’ roles differ in each clan, although they are largely seen as administrators between the federal government and the First Nations. The New York Times reports, “A spokeswoman for Coastal GasLink, Jacquelynn Benson, said in an email that the company respects both leadership systems and has held 120 meetings with Wet’suwet’en hereditary chiefs since 2012, as well as logging 1,300 phone calls and emails with them, trying to reach a solution” because the hereditary chiefs have opposed the pipeline for years.
In the Delgamuukw case, the Supreme Court upheld Indigenous peoples’ claims to lands that were never ceded by treaty. The Court affirmed that section 35 of the 1982 Constitution Act of Canada protects “Aboriginal title” as an “existing aboriginal right,” and this includes the right to exclusive use and occupation of land in a manner consistent with the group’s attachment to the land. Further, the Court implemented a three-part test to determine if the indigenous nations demonstrated Aboriginal title. The indigenous nations had to prove sufficient, continuous and exclusive evidence of territorial occupation. Although claims to the land were recognized, the Court never distinguished which of the two indigenous nations involved in the case, Gitxsan and Wet’suwet’sen, had title to the land where the pipeline is being protested. Although the indigenous nations chose not to move forward with another court case to determine the issue, it remains an issue between the First Nations.
By moving forward with the pipeline without the consent of the hereditary leaders of the Wet’suwet’en people, the TransCanada Company and effectively the Canadian government are blatantly disregarding the Wet’suwet’en people’s governance structure, undermining the rights of the indigenous people, and extinguishing any claim they might have on the land. They are also violating the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) Article 18, which states that “[i]ndigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions,” and Article 19, which requires states to consult and cooperate in good faith with indigenous peoples through their own representative institutions to receive free, prior and informed consent before adopting and implementing administrative or legislative measures that may affect the indigenous people. It should be noted that Canada initially voted against the adoption of the declaration in 2007; however, Canada has since removed its objector status and officially adopted UNDRIP. Although it is not a legally binding instrument under international law, the government of British Columbia also promised to uphold the articles in UNDRIP.
A separate reconciliation process is underway between the Wet’suwet’en people’s hereditary chiefs and the Canadian government to discuss title, rights, laws, and traditional governance. It is not directly linked to the pipeline project, but it will open necessary doors to include the hereditary leaders in decisions regarding the territory. There continues to be an ongoing case where the interim injunction originated, and the case is expected to be heard in court by May at the latest. If Canada and the local British Columbian governments intend to stand by their earlier declarations regarding UNDRIP, they must recognize the rights of the Wet’suwet’en people.