The legal issues related to the rights of the Wet’suwet’en people’s territory are complex. It is important to try to understand because this is at the root of what is going on in Canada, the United States, everywhere a conflict exists between the rights of Indigenous peoples and the laws of settler colonialism. On top of what is covered here, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is another important topic.
The conflict playing out in British Columbia can be traced back to the Doctrine of Discovery, “laws that invalidate or ignore the rights, sovereignty, and humanity of indigenous peoples.”
The Doctrine of Discovery is a principle of international law dating from the late 15th century. It has its roots in a papal decree issued by Pope Nicholas V in 1452 that specifically sanctioned and promoted the conquest, colonization, and exploitation of non-Christian territories and peoples. Hundreds of years of decisions and laws continuing right up to our own time can ultimately be traced back to the Doctrine of Discovery—laws that invalidate or ignore the rights, sovereignty, and humanity of indigenous peoples in the United States and around the world.What is the Doctrine of Discovery?
As an Indigenous woman, I feel the heavy weight of history. At Standing Rock, the dual traumas of colonization and the exploitation of Grandmother Earth have collided in our battles against oil extraction and pipelines. I cannot thank you enough for your support—and I ask you to stay with us through November’s hearing on DAPL’s expansion and the planned construction of Keystone XL in 2020. Pipeline resistance must and will remain our top priority for the foreseeable future.Phyllis Young, Standing Rock Organizer, The Lakota People’s Law Project. She links the “dual traumas of colonization and the exploitation of Grandmother Earth”.
As Native activists, our work to reclaim our own history is also critical. That’s why we’re challenging the root legal argument behind the subjugation of so many Indigenous people, both here and around the world. The Doctrine of Discovery, a papal declaration from the 15th century, was used as a basis for Manifest Destiny and continues to haunt my people today. It was cited by a Supreme Court justice as recently as 2005.
Now you have ecological systems and collapse, the die-off of all the insects, you have the sixth extinction that’s what’s happening right now. You have Fukushima, all the radiation from that. You know you can go on and list a whole litany of all the different symptoms and effects and consequences of domination and dehumanization. But most people don’t name it as that and now these people are living in the wreckage of that psychological dysfunction and these other people that caused that act blameless, they bear no responsibility. So how do we get rid of the domination system that afflicts the planet at this time? It has been afflicting it for so many centuries, thousands of years? That’s the real challenge.Steve Newcomb discusses the Doctrine of Discovery
What I hear when Prime Minister Justin Trudeau “call on all sides to resolve their differences but insisted that protesters must honour Canadian law”, when I hear Premier Brian Pallister say “as much as we will always respect the right of protesters to have a voice, they don’t have a veto and … they don’t have the right to put their rights ahead of everyone else and to disregard the laws of our province and country”, I hear the Doctrine of Discovery invalidating the rights of Indigenous peoples.
Two hereditary chiefs from a British Columbia First Nation at the heart of a wave of national protests launched a constitutional challenge of fossil fuel projects on Wednesday as Prime Minister Justin Trudeau called for demonstrators to observe the rule of law.Two Wet’suwet’en hereditary chiefs head to court over pipeline by Michelle McQuigge, The Canadian Press, Wednesday, February 12, 2020
The challenge calls on the Federal Court to declare that Canada is constitutionally obliged to meet international climate change targets, which the chiefs contend would cancel approvals for a natural gas pipeline that runs through traditional Wet’suwet’en territory in northern B.C.
“If Canada is allowed to continue approving infrastructure for fracked gas projects on a 40-year timeline, our territories will become a wasteland before the project licenses expire,” Chief Lho’imggin, who also goes by Alphonse Gagnon, said in a statement.
Speaking in Senegal on Wednesday, Trudeau called on all sides to resolve their differences but insisted that protesters must honour Canadian law.
“We recognize the important democratic right — and will always defend it — of peaceful protest,” Trudeau said during a news conference with Senegal President Macky Sall. “But we are also a country of the rule of law, and we need to make sure those laws are respected.”
Trudeau’s remarks, echoed by Canada’s transportation and finance ministers throughout the day, drew scorn from Indigenous protesters backing the Wet’suet’en hereditary chiefs.
In Manitoba, Premier Brian Pallister said the Justice Department will seek an injunction to end a rail blockade west of Winnipeg and have it enforced within a few days.
“As much as we will always respect the right of protesters to have a voice, they don’t have a veto and … they don’t have the right to put their rights ahead of everyone else and to disregard the laws of our province and country,” he said in an interview.
Tekarontake, a Kahnawake Mohawk, said the conflict is the result of a failure by governments and others to accept that the land belongs to the people who continue to adhere to the ways of their ancestors.
“That’s whose land this is, we have never disconnected ourselves from our mother. This land is our mother,” he said. “We haven’t abandoned her, we still love her, we care for her and we will defend her to the best of our ability.”
Amid the backdrop of nationwide protests, blockades, and arrests, Wet’suwet’en hereditary chiefs on the front lines of the fight to stop a pipeline in their traditional territories are pointing to a Supreme Court case from the 1990s that underscores their authority over the land.
The decision in Delgamuukw vs. British Columbia was delivered on Dec. 11, 1997, affirming Aboriginal land title and setting a precedent for how it is understood in Canadian courts.
“The Supreme Court established that Wet’suwet’en had never extinguished title to our territories,” said Molly Wickham, a governance director at the Office of the Wet’suwet’en, on CBC’s The Early Edition. “Within Western law, they have acknowledged that we still have title to our territories — and this is an issue about title.”
The Delgamuukw decision stemmed from a 1984 case launched by the leaders of the Gitxsan and Wet’suwet’en First Nations, who took the provincial government to court to establish jurisdiction over 58,000 square kilometres of land and water in northwest British Columbia.
In 1991, B.C.’s Supreme Court ruled that any rights the First Nations may have had over the land were legally extinguished when British Columbia became part of Canada in 1871.
The First Nations appealed and eventually the case made its way into the Supreme Court of Canada, which found Aboriginal title could not be extinguished, confirmed oral testimony is a legitimate form of evidence and stated Indigenous title rights include not only land, but the right to extract resources from the land.
Representatives from 20 First Nations — including the elected chiefs of the Wet’suwet’en — signed agreements with Coastal GasLink consenting to the project. The pipeline was subsequently approved by the provincial government.
However, hereditary leaders have not consented to the project which runs through their territories.
In the Delgamuukw case, Wet’suwet’en hereditary chiefs established that the Indigenous nation had a system of law that predates the days of elected band councils enacted under Canada’s Indian Act.
Under traditional Wet’suwet’en law, hereditary chiefs are responsible for decisions regarding ancestral lands.
In the current dispute, hereditary chiefs say the decision to approve a pipeline in their ancestral lands without consent is an infringement of their Aboriginal title and rights.
Aboriginal title and rights are protected under the constitution.
In the Delgamuukw decision, Chief Justice Antonio Lamer outlined that aboriginal title “encompasses the right to exclusive use and occupation of the land.”
However, the decision also notes that Aboriginal rights could justifiably be infringed for the development of agriculture, forestry, mining, and “the general economic development of the interior of British Columbia.” Lamar determined the issue should be examined on a case-by-case basis.
According to a 2014 judgment, infringements can only take place only when there’s adequate consultation, and “the benefit to the public is proportionate to any adverse effect on the Aboriginal interest.”
‘We still have title’: How a landmark B.C. court case set the stage for Wet’suwet’en protests.Delgamuukw vs. British Columbia underscores First Nations’ authority over their land by Jon Hernandez · CBC News · Posted: Feb 13, 2020
Indigenous youth and their supporters blocked all the entrances to the British Columbia legislature earlier this week to support the Wet’suwet’en people, and plans are being made to shut down the government tomorrow. The youth are insisting Indigenous rights must be respected.
This action will take place on the traditional lands of the Lkwungen. In conversation with people from local nations we wish to relay the request that supporters “continue walking with good minds and hearts”.
On Friday, February 14th, from 8AM till Noon, we invite one and all to join us in a shutdown of the BC Government. At the suggestion of Indigenous Youth, we call on settlers to help take responsibility for the colonial institutions causing violence against Wet’suwet’en land and people by picketing BC government buildings. We will especially be inviting BCGEU workers to turn their union’s supportive statements for Wet’suwet’en into meaningful action.
We will be hosting two information sessions on Wednesday for people who want to participate in this action. From 4.30-6PM we will be at Vertigo in the Student Union Building at UVic, and from 7.00-8.30 we will be downtown at Trees (546 Yates St). These info sessions are *not* mandatory but we will discuss the strategy, tactic, roles and goals of the action.
IMPORTANT: If you plan to participate in the action, we ask that you sign up so we can anticipate numbers. Please visit https://docs.google.com/spreadsheets/d/1L0Rdzw6goj2OMD9l6hrWuCdusnA1Tp9t1DKwKfwOSZs/edit?usp=sharing to see action sites and numbers needed, then email email@example.com to confirm what building you will be at (and if you are coming with others, total number). Note that that email is only being used for action site signups, and messages sent there will not be responded to (post questions here instead).
Information on meet-up spots and times, prior to initiating our pickets, will be added to this event page following the info sessions. And do check this page for updates. If you would like to anchor a site that does not yet have an anchor listed, please contact Seb (firstname.lastname@example.org).
On Tuesday, following unprecedented mobilization of Indigenous Youth and settler supporters, the ceremonial procession of the Speech from the Throne was cancelled for the first time. The first sitting of the Legislature was cancelled along with it. And yet, the NDP government persists in its perpetuation of colonial violence, removing Indigenous people, including matriarchs, from their land through a massive RCMP invasion.
Unlike the colonial government, we are listening to the five hereditary chiefs of the Wet’suwet’en and continuing to amplify the call for the RCMP to stand down and for CGL to leave the Wet’suwet’en Yintah forever. As so many Indigenous leaders have been saying, we are living through a historic moment in the history of settler colonialism and Indigenous Resurgence. We are asking people to put heart and hands to work for decolonization.
Wet’suwet’en Supporter Toolkit: http://unistoten.camp/supportertoolkit2020Unist’ot’en
Legal Fund: https://actionnetwork.org/fundraising/unistoten2020legalfund
Callout for Solidarity: http://unistoten.camp/alleyesonwetsuwetenGidimt’en
Call to action: www.yintahaccess.com
Donate to Gidimt’en Camp: https://www.gofundme.com/f/gidimt039en-strong
Event cover image photo credit: Mike Graeme