VANCOUVER—Permissions for a pipeline in Northern B.C. and subsequent police action constitute bald violations of both the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and domestic court precedent, according to lawyers and Indigenous nation members.

Chief Na’Moks, a Wet’suwet’en hereditary chief also known as John Ridsdale, said given his nation’s historical structure of governance, no meaningful consultation was ever undertaken in approving TransCanada’s Coastal GasLink LNG pipeline project, which would cut straight through traditional Wet’suwet’en territory.

“We’ve had so many sharp dealings with governments throughout the years,” Chief Na’Moks said in an interview. “This is a blatant example of how little regard they do have for us.”

In pushing the project through, Articles 18 and 19 of the UNDRIP — which state Indigenous people have the right to participate in decision-making via representatives of their own choosing, and that government has an obligation to obtain “free, prior and informed consent” before adopting measures that may affect those people — were ignored, Chief Na’Moks said.

While some Wet’suwet’en elected band councils signed a deal for the pipeline on behalf of the nation, the hereditary chiefs belonging to the five clans that make up the Wet’suwet’en nation stand in adamant opposition to the decision.

The chiefs, who inherit their positions but are still considered integral leaders of their communities, say the band council only has jurisdiction over the reserve, while the hereditary chiefs have always maintained jurisdiction over Wet’suwet’en traditional territories.

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Government and industry ignored that long-standing hereditary system and instead consulted the representatives of a system installed by the federal government, Chief Na’Moks said, thereby taking “the path of least resistance” toward an easy approval of a divisive project.

“If we choose who would speak, it would be the hereditary chiefs,” he added. “Although (the band and council) are our people, it is the wrong people to talk to.”

In a statement submitted to The Star, the B.C. Ministry of Energy, Mines and Petroleum Resources pointed out the Coastal GasLink project was approved in 2014, under the former BC Liberal provincial government.

“Our government is working with First Nations to bring the principles of the UN Declaration on the Rights of Indigenous Peoples into action in British Columbia,” the statement reads, adding Premier John Horgan has noted there “is no quick fix” for the work of reconciliation, which is “incredibly complex.”

“We continue to have respectful dialogue on a whole range of issues as we work with the Office of the Wet’suwet’en. We are confident that if we continue to have dialogue, we can all move forward toward finding peaceful resolutions.”

Horgan, meanwhile, has voiced his support for the Coastal GasLink project and its terminus in Kitimat, B.C., as recently as last week.

Coastal GasLink, in a statement submitted to The Star, said the company’s engagement with Wet’suwet’en hereditary chiefs has been ongoing since 2012.

“The consultation was meaningful and informative and the traditional knowledge that was provided has helped make this project better,” the statement reads.

Wet’suwet’en nation members, including hereditary chiefs, have been an integral part of providing input for the project, and Coastal GasLink is “proud of the relationships we’ve built with all First Nations involved,” it continues.

“We remain committed to continuing positive dialogue and to developing this project according to the highest environmental standards, including the recognition of Indigenous values and traditions.”

But Chief Na’Moks said the police confrontation at the Gidimt’en checkpoint on Jan. 7 was a direct result of the legitimate, unanimous opposition of hereditary chiefs being consistently ignored.

Last week, after Wet’suwet’en land defenders — with the backing of Wet’suwet’en hereditary chiefs — refused to abide by a B.C. Supreme Court injunction to open a checkpoint outside Houston, B.C., set up to prohibit Coastal GasLink vehicles entering traditional Wet’suwet’en territory, RCMP overran the gate and camp members.

Fourteen people were arrested in the confrontation with dozens of armed police, whose numbers included members of the RCMP’s Emergency Response Team — a camouflage-wearing tactical squad of “highly trained RCMP members capable of employing specialized weapons, equipment and tactics to resolve extremely high-risk situations,” according to the RCMP’s website.

In a statement issued by the RCMP following the incident, Eric Stubbs, assistant commissioner of the B.C. RCMP’s criminal operations, called the situation “challenging.”

“The protesters’ reaction to the police ranged from passive resistance to active resistance to actual assaultive behaviour,” Stubbs said in the statement, noting that for those involved, the police interaction was an “emotional situation.”

Stubbs wrote he knew some concerns existed regarding police conduct, and an “after-action review” would take place to identify and address any enforcement issues.

B.C.’s Ministry of Public Safety, in a statement issued to The Star, said the RCMP “conduct operations at arm’s length from government. They are acting in response to a court order and under the authority of that order. The RCMP take a measured approach and respect the rights of all individuals to lawfully and peacefully protest.”

Chief Na’Moks, however, sees the situation differently.

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“They had assault rifles,” he said. “Was there any violence from our side? No. There were women standing there holding eagle feathers. That’s our weapon. Power, peace, loving, sharing and caring. That’s our weapon.”

The 14 arrestees were subsequently transferred to Prince George for court appearances — a further violation under Article 10 of the UNDRIP, which states Indigenous people “shall not be forcibly removed from their lands or territories” or relocated without free, prior and informed consent, argued Chief Na’Moks.

UNDRIP, as a document laying out a template for international law, is arguably unenforceable in a domestic setting. No precedent currently exists for prosecuting Canadian law enforcement for violations of UNDRIP.

Nonetheless, both the federal government and B.C. government have made explicit commitments to upholding its tenets.

Federal MP Romeo Saganash, meanwhile, has sponsored a private member’s bill — currently making its way through the Senate — to “ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.”

But more than that, Canada is a common-law country and, as such, domestic legal principles are meant to be informed by international law, said Sarah Morales, associate professor in the faculty of law at the University of Victoria.

“There’s a strong legal foundation for saying the UN Declaration on the Rights of Indigenous Peoples and the rights and principles it upholds should be informing, in a very strong way, decision-makers when it comes to these types of questions,” Morales said in an interview.

Morales, who is Coast Salish and a Cowichan tribes member, said ignoring the principles of the UNDRIP to streamline the approval of projects that could benefit the economy amounts to a “shortcut” that can only be detrimental to both Indigenous Peoples and Canadian settler communities alike.

Refusing to undertake meaningful consultation with proper representatives will only result in further conflict, as evidenced both by last week’s confrontation and an entire history of conflict between state actors and Indigenous interests, she said.

And that means ending the practice of picking and choosing which representatives of a particular Indigenous group a government or company wishes to consult, she added.

“Arguably that is not taking place,” she said. “(UNDRIP) has not been followed, otherwise we would not be dealing with such a heated, somewhat volatile situation as we are here, which we see is having ripple effects across the country with other First Nations standing in solidarity.”

But B.C. lawyer Peter Grant said that while implementing the principles of UNDRIP domestically is important, whether it would give Indigenous Peoples greater agency to assert their interests is another matter. Grant has worked with the Wet’suwet’en and other Indigenous groups for more than four decades.

“Of course it’s good that the UN declaration will be passed, and yes it will be added to the legal tool box,” he said in an interview. “But is there the political will to sit down and say to the Wet’suwet’en, ‘We recognize your hereditary system and we’ve done this wrong and we’re going to do it right?’”

In fact, domestic court precedent already provides direction that would support the claims of authority made by Wet’suwet’en hereditary chiefs over their traditional territories. The question is whether government will embrace that guidance.

The 1997 Delgamuukw Supreme Court of Canada decision confirmed Aboriginal title exists in Canada and that Indigenous Peoples can rely on their oral histories to prove their title. Aboriginal title is the right of Indigenous Peoples to own their traditional lands and waters and is part of Aboriginal rights protected under Section 35 of the Canadian Constitution.

In 2014, the Supreme Court of Canada’s Tsilhqot’in decision applied the Delgamuukw test for Aboriginal title and held, for the first time, a specific location of Aboriginal title: a defined area of land located in the South Chilcotin, Cariboo Region of B.C. where the Tsilhqot’in Nation now determines use and access.

And the authority of the Wet’suwet’en hereditary governance system over their traditional territories was recognized by the B.C. Supreme Court in a 2011 decision, he added.

“The point is that the Wet’suwet’en have operated under a hereditary system for centuries, and this has been no secret to government,” he said.

Through that lens, he added, arguments that the Wet’suwet’en are the ones defying the “rule of law” in demanding consultation for development on their ancestral lands hold little water.

“The rule of law applies to everybody, including the state. Particularly the state,” he said. “So when government does not follow the law the courts have found … you say, ‘Well, wait a minute, where does the rule of law end? Is it (only relevant) when it’s in favour of the government?’ No, I don’t think so.”

And that ostensibly two-tiered application of the law, he said, has no place in a democratic country that claims to be trying to move beyond its history of denial and oppression of Indigenous Peoples.

“It’s not acceptable,” he said. “It’s certainly not reconciliation.”

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