First Peoples Law is dedicated to defending and advancing Indigenous peoples' Aboriginal title, rights and Treaty rights.

Open Letter to Prime Minister Trudeau and Premier Horgan Re: Wet’suwet’en Hereditary Chiefs’ Opposition to Coastal GasLink Pipeline Project

January 23, 2020

As most of you will be aware, the possible RCMP enforcement of an injunction against the Unist’ot’en (a client of ours) in response to their continued opposition to the Coastal GasLink pipeline has been in the national news.

Dozens of academics and lawyers from across Canada have signed the following letter urging the provincial and federal governments to meet directly with the Wet’suwet’en Hereditary Chiefs to open a nation-to-nation dialogue in the hopes of peacefully resolving the matter.


January 22, 2020

The Right Hon. Justin Trudeau
Prime Minister of Canada

The Hon. John Horgan
Premier of British Columbia

Via email


Dear Prime Minister Trudeau and Premier Horgan:

Re: Wet’suwet’en Hereditary Chiefs’ Opposition to Coastal GasLink Pipeline Project

We write as settler and Indigenous legal professionals from across Canada to express deep concern about the conflict regarding the Coastal GasLink pipeline in Wet’suwet’en territory. We call on the federal and provincial governments to meet with the Wet’suwet’en Hereditary Chiefs immediately and to address this issue in a manner that upholds the principle of reconciliation, the authority of the law of the Wet’suwet’en, the UN Declaration on the Rights of Indigenous Peoples and the honour of the Crown.

The police presence on Wet’suwet’en territory has intensified alarmingly since the December court order prohibiting individuals from obstructing the project, and the Hereditary Chiefs’ eviction notice to Coastal GasLink. Indigenous and human rights organizations, including the UN, have raised concerns about violations of Indigenous rights in Wet’suwet’en territory. Meanwhile, the Province has declined the Hereditary Chiefs’ requests to meet. Premier John Horgan recently announced that the “rule of law” must prevail and the project will proceed despite the Hereditary Chiefs’ opposition. He subsequently refused to meet with the Chiefs while in northern BC. Prime Minister Justin Trudeau has also distanced himself, calling the dispute a provincial matter.

We are deeply troubled by BC’s and Canada’s positions. This is not fundamentally a dispute between Coastal GasLink and the Wet’suwet’en, nor between Hereditary Chiefs and Indian Act band councils. It goes to the core of the relationship between the Crown and Indigenous Peoples and the obligations that arise therefrom. Both the provincial and federal governments must participate directly in its resolution.

The Hereditary Chiefs, not the band councils, were the plaintiffs in the landmark Delgamuukw-Gisday’wa case before the Supreme Court. The Court confirmed that the Wet’suwet’en never surrendered title to their ancestral lands, and accepted extensive evidence outlining their hereditary governance system. The fact that band councils have signed benefit agreements with Coastal GasLink cannot justify the erasure of Indigenous law or negate the Crown’s obligation to meet with the Hereditary Chiefs.

Nor can Wet’suwet’en opposition be resolved by meetings between Coastal GasLink and the Hereditary Chiefs. The Supreme Court has been clear: The Crown must engage directly with the Indigenous group whose rights are at stake. This obligation cannot be fulfilled by third parties with vested interests in the project’s success.

Premier Horgan’s insistence on the “rule of law” fails to acknowledge that the relevant law includes not just the injunction order but the Constitution, Supreme Court decisions, and – crucially – Wet’suwet’en laws and institutions. The laws of Indigenous Peoples, including the Wet’suwet’en, predate those of Canada, are equally authoritative, and are entitled to respect. In an age of truth and reconciliation, respect for the rule of law must include respect for the authority of Indigenous law and a commitment to work out a just and sustainable relationship between Indigenous and settler Canadian legal systems.

BC and Canada are obligated to act honourably in their dealings with Indigenous Peoples, including by engaging in respectful processes to advance reconciliation. Moreover, a key reason that the 1867 Constitution gave the federal government exclusive legislative authority over “Indians, and the lands reserved for the Indians” was the recognition that local settler communities might fail to respect the pre-existing relationships between Indigenous Peoples and their territories. The Supreme Court has repeatedly affirmed Ottawa’s responsibilities to Indigenous Peoples. For Canada to shirk them now would be contrary to a key principle of Canadian constitutionalism.

The federal and provincial positions risk undermining Canada’s collective effort to achieve meaningful reconciliation with Indigenous Peoples. We are just beginning to confront our shared colonial past and present, and to address the longstanding wrongs inflicted on Indigenous Peoples. Some governments have taken positive steps in this direction, including commitments to implement the Truth and Reconciliation Commission’s Calls to Action and the UN Declaration. These initial steps ring hollow when the Crown refuses to honour the Hereditary Chiefs’ request for a meeting, let alone recognize and respect Wet’suwet’en law.

More than twenty years ago, Chief Justice Lamer, writing for Supreme Court, recognized the Crown’s moral duty to engage in good faith negotiations with the Wet’suwet’en to resolve the issue of ownership and jurisdiction over their ancestral lands. This apt statement is reinforced by the growing appreciation that these negotiations are between two systems of legal and political authority. Reconciliation and justice cannot be achieved by relying on the RCMP or resource companies to do the Crown’s work.

We urge BC and Canada to meet with the Wet’suwet’en Hereditary Chiefs and to commit to a process for the peaceful and honourable resolution of this issue.


SENT ON BEHALF OF:

Dr. Gordon Christie
Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Jocelyn Stacey
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Stepan Wood
Professor, Canada Research Chair in Law, Society and Sustainability
Director of the Centre for Law and the Environment
Peter A. Allard School of Law
University of British Columbia

Patricia Barkaskas
Academic Director, Indigenous Community Legal Clinic
Peter A. Allard School of Law
University of British Columbia

Johnny Mack
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Efrat Arbel
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Margot Young
Professor
Peter A. Allard School of Law
University of British Columbia

Darlene Johnston
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Julen Etxabe
Canada Research Chair in Jurisprudence and Human Rights
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Debra Parkes
Professor and Chair in Feminist Legal Studies
Peter A. Allard School of Law
University of British Columbia

Lee Schmidt
Associate Director, Indigenous Legal Studies
Peter A. Allard School of Law
University of British Columbia

Dr. Emma Cunliffe
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Mary Liston
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Alexandra Flynn
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Brenda Gunn
Member of Métis Nation, Manitoba
Associate Professor
Robson Hall
Faculty of Law
University of Manitoba

Dr. David Milward
Associate Professor
Faculty of Law
University of Victoria

Alan Hanna
Assistant Professor
Faculty of Law
University of Victoria

Sarah Morales (Su-taxwiye)
Associate Professor
Acting JID Director
Faculty of Law
University of Victoria

Felix Hoehn
Assistant Professor
College of Law
University of Saskatchewan

Sakej Henderson
Research Fellow
College of Law
University of Saskatchewan

Dr. Beverly Jacobs
Barrister & Solicitor
Assistant Professor
Faculty of Law
University of Windsor

Dr. Claire Mummé
Associate Professor
Faculty of Law
University of Windsor

Gemma Smyth
Associate Professor
Faculty of Law
University of Windsor

Anneke Smit
Associate Professor
Director, Centre for Cities
Faculty of Law
University of Windsor

Jillian Rogin
Assistant (Clinic) Professor
Faculty of Law
University of Windsor

Sukanya Pillay
Visiting Professor and Law Foundation of Ontario Scholar
University of Windsor

Annette L. Demers
Law Librarian
Faculty of Law
University of Windsor

Robert Hamilton
Assistant Professor
Faculty of Law
University of Calgary

Dr. Joshua Nichols
Assistant Professor
Faculty of Law
University of Alberta

Kent McNeil
Professor
Osgoode Hall Law School
York University

Estair Van Wagner
Assistant Professor
Academic Director, Environmental Justice and Sustainability Clinic
Osgoode Hall Law School
York University

Deborah McGregor
Associate Professor
Canada Research Chair, Indigenous Environmental Justice
Osgoode Hall Law School & Faculty of Environmental Studies
York University

Naiomi W. Metallic
Chancellor’s Chair in Aboriginal Law and Policy
Assistant Professor, Schulich School of Law
Dalhousie University

Larry Chartrand
Full Professor
Faculty of Law, Common Law Section
University of Ottawa

Drew Lafond
President, Indigenous Bar Association
Partner, MLT Aikins LLP

The Honourable Stephen O’Neill
Ontario Superior Court of Justice (1999-2015) Retired
Associate Lawyer at Nahwegahbow, Corbiere (2016-present)

Laura Sharp
Secretary of the Indigenous Bar Association Board of Directors

Rheana E. Worme
President, Indigenous Law Students' Association
University of Saskatchewan

Harold R. Johnson
LL.B. LL.M. (Harvard)
Retired Crown Prosecutor
La Ronge, Saskatchewan

Paul Joffe
Avocat/Lawyer

Comments
Sean Carleton(1 month ago)
The whole world is watching. Nation to Nation relations require meeting and negotiation, not sending in militarized police to clear the way for more colonization.

Patrick Lindseth(1 month ago)
The heridotary chiefs , in there words. Or the only Wetsuetin that have contrl over thier traditional terrotories.
1. What do the majority of Westsuen have rights to
2. Heridotary chiefs ( unelected ) have dictorial rights.
3. Treatu or non treaty lands csnnot be controlled by birthright.
If Canafa moves forward pn solving " traditional territory issies"
All band members must have a say.
Having said this how can tjese legal scholars be so high and mighty in dealing with Westsuitin heridary chiefs at expense of all band members.

Dillian(1 month ago)
How much money do the underChiefs want?

Brenda Keesal(1 month ago)
On behalf of all living beings, I respectfully ask you to meet directly with the Wet’suwet’en Hereditary Chiefs to open a nation-to-nation dialogue in the hopes of peacefully resolving the matter.

Jan(1 month ago)
Reconciliation is more than a word
It is an attitude of acceptance that a power shift must occur

Calvin Climie(1 month ago)
I am increasingly frustrated by how a supposedly progressive party - the NDP - still has leaders so wrapped up in the continuing colonization of Indigenous lands. Makes me want to quit the party.

Roxanne Stanick(1 month ago)
Premier Horgan’s refusal to meet with the Wet’suwet’en Hereditary chiefs is rude, unprofessional, dangerous and illegal. He cannot force a pipeline through their traditional territories without their consent. UNDRIP was recently enacted in B.C. and it must be respected. It doesn’t matter if 20 other Indigenous nations signed on to the pipeline, he can’t force a pipeline through Wet’suwet’en lands without their consent. He is shirking his responsibilities to reconciliation and respect for Wet’suwet’en law. It appears that Premiere Horgan is so focused on money and pushing the pipeline through unceded Wet’suwet’en territories that he doesn’t have even an ounce of respect to meet the Wet’suwet’en Hereditary Chiefs in good faith. It doesn’t matter if he’s made agreements with other Indigenous nations, he HAS to RESPECT Wet’suwet’en claims to their unceded territories where they have lived for over ten thousand years. This is how it goes: you don’t force a pipeline through Wet’suwet’en unceded territories. No consent, no pipeline through their land. Horgan is not considering another location for the pipeline he was adamant that the Wet’suwet’en are somehow breaking the law, which is untrue.
Pipeline leakage, deadly explosions and increased fossil fuel emissions are pipeline realities. It’s too late for all this fracked gas. Australia has been burning for a month. Over 1 Billion animals died in the catastrophic fires. We are in a Climate Emergency! It’s too late to suck out all the gas and bitumen from our beautiful blue planet...we have to stop supporting the fossil fuel industry and immediately move to a green economy. What does it say about B.C. when getting fracked gas to Kitimat is more important than peoples’ lives? The Federal government has given consent for snipers to shoot to kill Wet’suwet’en people who are peacefully protecting their own land. Please invite the UN to intercede in this dangerous situation being ratcheted up by Premiere Horgan and PM Trudeau. Hands off Wet’suwet’en land Trudeau and Horgan! And, it is NOT the role of the RCMP to negotiate with the Wet’suwet’en people who have been reaching out for discussion and respect, but who have been dismissed and criminalizes for their peaceful demonstrations to protect their unceded territories.

Victor A. Cyr, B.Sc., Env. Sc.(1 month ago)
Our Canadian 'leaders' are not leaders at all, they are resource mobsters. Politicians and complicit police officers are willing law breakers, thus gross hypocrites when speaking about law and order.

Brenda (1 week ago)
Is it possible to make a form of the open letter dated January 23 2020 into a legal petition for signing by the public?

Duane(1 week ago)
Eight out of 13 Hereditary Chiefs and all twenty Band Councils support the project and all the Band Councils have signed benefit agreements which will help their people financially. Only five Hereditary Chiefs disagree. The last time I looked we still live in a democracy. Why should the minority be given so much power in this case. Lets get on with the construction of the pipeline which will benefit all British Columbians and all Canadians.

Post a Comment
Captcha