Guardian – Leyland Cecco
The territory of the Wet’suwet’en in British Columbia was never ceded by treaty and hereditary chiefs say they retain authority
Justin Trudeau was in campaign mode this week, striding around a school gymnasium, shirtsleeves rolled up and brow suitably furrowed as he addressed voters’ concerns at one of his annual town hall-style meetings.
A day earlier and nearly 800km away, another face of the federal government was on display as dozens of police – some heavily armed – stormed a makeshift barricade, arresting 14 indigenous protesters and prompting others to flee for safety on snowmobiles.
The protesters in northern British Columbia had camped out for days amid bitter cold and deep snow, manning a checkpoint to prevent construction vehicles from entering the territory of the Wet’suwet’en nation.
Their demonstrations, part of a fight against a multibillion-dollar natural gas pipeline, galvanized supporters across the country, and at his town hall meeting, the prime minister was forced to contend with a barrage of angry questions.
The standoff ended on Wednesday night, in a temporary truce between leadership and police.
But the dramatic scenes highlighted a broader issue for Canada in 2019: swaths of territory – never signed away by treaty or seized in war – still belong to indigenous nations who are fighting back against resource projects they say they never consented to.
Unlike the rest of the country – where relationships between indigenous groups and the state are governed by treaties – few indigenous nations in British Columbia ever signed deals with colonial authorities, meaning the federal government still operates in a vacuum of authority on their lands, said Gordon Christie, a scholar of indigenous law at the University of British Columbia
“What I see is a long history of the Canadian government doing its best to avoid acknowledging the existence of other systems of government,” he said.
“The Crown has itself acknowledged that the way it gets authority over territory is through the making of a treaty,” said Christie. “So this is their problem.”
In recent months, tensions with indigenous peoples have flared across Canada as energy companies seek to construct projects on and through indigenous lands. Both TransCanada, which is attempting to build the Coastal GasLink pipeline and Kinder Morgan, which was pushing the TransMountain pipeline, have faced fierce opposition from indigenous groups.
Much of the current uncertainty surrounds who companies should consult with when they begin to plans projects which would enter indigenous lands.
While elected indigenous officials from communities along the route of the proposed Coastal GasLink pipeline have signed benefit agreements with TransCanada, five Wet’suwet’en hereditary chiefs oppose the plan. The chiefs, who are unelected, argue they retain authority over the sprawling 22,000 sq km of the band’s traditional territory.
Christie agreed, saying the hereditary chiefs legal claim to rightful control is “airtight”.
“The goal has always been the same for Canada and indigenous people: it’s to remove us from our land and have access to the resources,” said Jennifer Wickham, a member of the Gitdumden, one of five clans making up the Wet’suwet’en nation. “That storyline has never changed.”
TransCanada says it has had more than 15,000 “interactions and engagements” with indigenous groups as part of the consultation process. The outcome between protesters and police was “not the one we wanted”, the company in a statement.
The events of the past week have cast a shadow over the Trudeau’s image of a political leader seeking reconciliation with Canada’s marginalized and often mistreated First Nations. While he lamented the arrests, his government will maintain its course, arguing the resource projects must be built.
“Justin Trudeau has said that reconciliation is a priority for him. I would have to say to him, is this what reconciliation looks like?” said Wickham, whose sister Molly was arrested on Monday when police raided the protest camp.
The site was first occupied by indigenous protesters in 2009 and now hosts a complex of buildings, including a traditional healing lodge.
Freda Huson, who has lived there for nearly a decade said that for generations the community has lost land to farming and resource development and now fears that the pipeline could taint the only available drinking water in the area.
“I shouldn’t have to be dragged into the courts to prove that I own land that I know is ours. Our people owned these territories since time immemorial,” she said.
Trudeau pledged to overhaul the framework guiding relations with indigenous communities nearly a year ago.
But in areas where no treaties were signed, the courts have often become the arbiter of land claims. In 2014, the Tsilhqot’in people in British Columbia won a longstanding battle over title rights at the country’s highest court – but at a cost of more than $10m.
Both Huson and Wickham believe Canadian law is inadequately equipped to handle land claims fights with the government.
In 1997 the supreme court put an end to one of the longest-running legal battles in Canadian history, ruling that the Wet’suwet’en had effectively demonstrated clear title to their land.
The plaintiffs exhausted more than an estimated $25m on legal fees – only to have a retrial called, leaving uncertainty around their claim.
“It doesn’t matter which route we take. We took this to the highest court in the Canada and it was ruled in our favour,” said Wickham. “Even when we follow their western law, it doesn’t do us any good.”
Both the federal government and British Columbia have pledged to implement the United Nations declaration on the rights of indigenous peoples (UNdrip).
But Christie argues that until there is a fundamental shift in government attitudes, similar feuds will continue erupt.
“The Canada government [could] change its stance and just acknowledge that these other systems of government have been around for a long period of time,” he said. “And treaty-making is the way to manage that.”
Huson said: “We’re in the right. We’re not doing anything wrong. This is my home. This is my land. They want to break down my door.”