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Rights + Justice

Horgan’s Pipeline Push Betrays His Reconciliation Promise

First Nations expected a new era; instead the government has embraced colonialism and ignored UNDRIP law.

Judith Sayers 15 Jan 2020 | TheTyee.ca

Judith Sayers (Kekinusuqs) is from the Hupacasath First Nation in Port Alberni, B.C. She is an adjunct professor at the University of Victoria in Business and Environmental Studies.

It’s the same old story Indigenous Peoples have heard for generations.

B.C. Premier John Horgan tells the public “the rule of law” demands the Coastal GasLink pipeline go ahead. Permits are in place, and the courts have approved construction.

The opposition of Wet’suwet’en hereditary chiefs is not important to Horgan, as he points to 20 First Nations that have signed agreements to allow the pipeline and negotiated benefits. The five clans who have not agreed don’t seem to count.

Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?

Are we not in a new era of reconciliation? A new decade? The decade of the enactment of the United Nations Declaration on the Rights of Indigenous Peoples Act in this province?

What would I expect from the premier in this new era, in this particular situation when he needs credibility with First Nations if his commitment to UNDRIP is to be taken seriously?

I would expect the premier to look back on past decisions and ensure they were made in the spirit of UNDRIP — including approval of the Coastal GasLink pipeline. His party was making political promises to uphold UNDRIP long before the NDP were in government.

In the 2014 Supreme Court of Canada Tsilhqot’in decision, the justices stated clearly that provincial and federal governments need to be prepared to cancel already approved projects if First Nations establish title to the land and oppose them.

“Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward,” the judgment says. “For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” (Emphasis added.)

The court also sets out the correct path for governments.

“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

Horgan should heed the advice of the Supreme Court of Canada and revisit the decision to proceed with the pipeline, especially in light of his commitments to resolve land titles, implement UNDRIP and advance reconciliation. The court advised getting the consent of Indigenous people; that’s what he should do.

The right to self-determination

Furthermore, UNDRIP is very clear that all Indigenous Peoples have the right to self-determination. Self-determination means that Indigenous Peoples will freely determine their own political status. That means governments and companies cannot decide which is the right governing body for a nation. That is a matter for Indigenous Peoples.

The Indian Act imposed a system of government on First Nations, attempting to dismantle a governance system that had functioned for centuries. It made chiefs and councils the owners of the land and gave them total power.

But traditional government systems have not been eradicated.

Wet’suwet’en hereditary chiefs are opposing the pipeline, and some are questioning their legitimacy.

But the 1997 Delgamuukw decision, which transformed the way Indigenous land title is considered, wasn’t brought by Indian Act elected chiefs and councils.*

Wet’suwet’en hereditary chiefs launched the lawsuit and took the issue to the Supreme Court of Canada.

Surely this should indicate to the government and companies who has title and rights to the land. And surely, they should recognize that it is up to the Indigenous people to determine this, not the provincial government. Clearly the hereditary chiefs must be part of this decision on whether the pipeline proceeds.

Free, prior and informed consent

Free, prior and informed consent has been and will continue to be an issue in relation to UNDRIP, because governments and Indigenous people do not agree on its meaning.

Horgan’s government has said it was waiting for the UNDRIP legislation to pass before working to reach agreement about what free, prior and informed consent means. He has not tried to work this out with First Nations in advance, even though that would have been prudent.

We have heard Horgan and Minister of Indigenous Relations Scott Fraser say that the requirement for free, prior and informed consent does not give First Nations a veto over projects in their territories.

Then what is consent under UNDRIP? Is it a simple yes or no? Does it give a veto because no means no? These are good questions that must be answered by Indigenous Peoples and governments.

The Wet’suwet’en hereditary chiefs are saying no. No consent. No project. No access. Not on their lands.

In criminal law, a woman can say no to a man and no means no. If he proceeds against her wishes, he can be guilty of a crime. Why doesn’t the requirement for free, prior and informed consent give the same right to Indigenous Peoples?

So what does consent mean to this B.C. government? That they have the final say? That they can decide no does not mean no. That the status quo continues when it comes to development?

That would not reflect a new era of reconciliation, or the principles of UNDRIP. That would be the Crown asserting jurisdiction over First Nations laws and title once again.

Sending in the RCMP to remove protesters is also the same old story — a show of force against defenders of the land who are not armed, who are elders, youth and chiefs. RCMP assert their power under a court order that hasn’t taken into account Indigenous laws.

This pipeline dispute is not new. It has been ongoing for years. That it has not been resolved speaks volumes about the unwillingness of this government to sit down at a table with the hereditary chiefs and talk about why they are opposed and try and resolve differences.

If we are in the era of reconciliation, there needs to be more efforts to come to agreements. If agreements cannot be reached, there needs to be impartial tribunals established to help find those solutions. And if no solutions are found, then there is no project.

If the principles of UNDRIP are being implemented and being placed into laws, the government has to start respecting its provisions now.

For instance, Article 18 gives the Wet’suwet’en the right to participate in any decision-making through their own procedures and law. This has not happened.

Article 26 gives them the right to own, use, develop and control the lands, territories and resources they possess through ownership, and says the state must give legal recognition and protect their lands and resources. None of this has occurred to date, and it doesn’t look like B.C. is even considering it. The government is saying this is Crown land, the company has Crown permits, so therefore the development must happen.

Article 25 gives the Wet’suwet’en the right to strengthen their spiritual relationship with the land, waters and resources in their territories. But if their territory is destroyed for a pipeline, their relationship with their land will also be destroyed.

Article 29 gives them the right to the productive capacity of their territories, and a pipeline does not allow for this.

There are many more articles on implementing laws and protecting sacred and cultural sites that B.C. is violating by continuing with the pipeline project over Wet’suwet’en objections.

These statements by Horgan set back the ambitious, positive agenda set by his government in implementing UNDRIP. They signal to First Nations’ people in B.C. that the government is not serious about the new law.

And they strongly signal trouble ahead as B.C. continues with its status quo agenda that claims government has final say over developments on First Nation title lands, and the requirement for free, prior and informed consent will not be taken seriously.

Many First Nations peoples in this province are hearing Horgan and asking what has changed?

The answer is nothing. B.C. is moving ahead with the government’s economic agenda at the expense of First Nations rights, title and all the requirements set out in the United Nations Declaration on the Rights of Indigenous Peoples.

First Nations people thought we were throwing out the old book and beginning a new one. Sadly, it looks like the same old story. This is not the new decade we were looking for.

*Story updated on Jan. 15 at 2:00 p.m. to correct the year of the Delgamuukw decision.  [Tyee]

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