Wet’suwet’en and the Law

The law related to the current situation of the Wet’suwet’en people’s opposition to the Coastal GasLink pipeline is complicated. Often at issue is whose law applies. I hope some of the excerpts below are helpful.

At the end is part of a Canadian Supreme Court case in which an alternate route for the pipeline was offered by the Wet’suwet’en people. The court ruled against the Wet’suwet’en when the pipeline company said it would be too expensive to use the suggested alternate route. You might remember when the original route of the Dakota Access pipeline was changed when the people of Bismark, ND, objected to the possibility of their water being polluted. The route was then moved to within a mile of the Standing Rock Sioux Reservation. The company behind the Dakota Access pipeline, Transcanda, is the same company with the new name, TC Energy, that wants to build the Coastal GasLink pipeline.


The right of free, prior, and informed consent enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) logically flows from the recognition that Indigenous governmental, legal, and political orders have existed on this land from time immemorial, long predating the arrival of European settlers.

SETTLER GOVERNMENTS ARE BREAKING INTERNATIONAL LAW, NOT WET’SUWET’EN HEREDITARY CHIEFS, SAY 200 LAWYERS, LEGAL SCHOLARS By Beverly Jacobs, Sylvia McAdam, Alex Neve and Harsha Walia, Thestar.com February 27, 2020


The images and stories coming out of the the RCMP raids on Wet’suwet’en are disheartening, disturbing and reflect a certain dishonesty about Canadian officials’ self-described commitment to Indigenous rights and reconciliation.

Lands Defenders of the Wet’suwet’en Nation are resisting a $6-billion, 670-kilometre pipeline set to be constructed through their territory. Raids by armed RCMP officers over the past few days have led to the arrest, detainment and denied access of Indigenous Peoples from their lands. The Canadian Association of Journalists and others have condemned police crackdowns on reporters covering the raids.

The complexity of what laws and whose laws apply is something you won’t always see or hear in news reports. Erin Seatter and Gitxsan journalist Jerome Turner (who has been embedded in the Land Defender camps during the raids), put together an amazing explainer piece to help people understand it.

Hereditary chiefs are the title holders of the land.

Under the traditional Wet’suwet’en land system, the hereditary chiefs from each of the five clans (divided into 13 house groups) that make up the Wet’suwet’en Nation have the right to control access over the territory. Trespassing is considered a terrible offence and must be immediately corrected.

“190 kilometres of the proposed route will run through our territory. It threatens our water, our salmon, and our rights, our title, our jurisdiction,” Hereditary Chief Na’Moks of the Tsayu Clan told APTN.

What you might not know about Indigenous law and the raids on Wet’suwet’en by Jesse Firempong, Greenpeace, 10 February, 2020


As lawyers and legal academics living and working on this part of Turtle Island now called Canada, we write to demand an end to the ongoing violations of Indigenous nations’ internationally recognized right to free, prior, and informed consent — for example, with the Trans Mountain and Coastal GasLink pipelines routed through unceded Indigenous lands, including Wet’suwet’en lands.

Canadian law and legal institutions — from legislation like The Indian Act to court decisions legitimizing treaty violations with racist stereotypes — have long served as instruments of settler colonialism. And they continue to do so with the legal authorization of the violent dispossession, suppression, and criminalization of Indigenous land and water protectors.

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system,” as the late Mohawk legal scholar Patricia Monture-Angus wrote. “How was all of this delivered? The answer is simple: through the law.”

Through Canadian Eurocentric Law, that is. Clearly, law is not synonymous with justice.
While the Supreme Court has officially recognized that Canada was not in fact terra nullius (“nobody’s land”) before European colonization, Canadian courts and legal institutions continue to treat Indigenous territories as if they are so — enabling a wide scope of governmental and corporate infringement on unceded Indigenous lands, including Wet’suwet’en land, even in the face of sustained Indigenous resistance.

The right of free, prior, and informed consent enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) logically flows from the recognition that Indigenous governmental, legal, and political orders have existed on this land from time immemorial, long predating the arrival of European settlers.

It is important to understand that while the Wet’suwet’en defence of the land, and the B.C. and Canadian governments’ amnesia about their legal and moral obligations, are now drawing international attention, these patterns of government-sanctioned lawlessness are being committed all across Turtle Island.

SETTLER GOVERNMENTS ARE BREAKING INTERNATIONAL LAW, NOT WET’SUWET’EN HEREDITARY CHIEFS, SAY 200 LAWYERS, LEGAL SCHOLARS By Beverly Jacobs, Sylvia McAdam, Alex Neve and Harsha Walia, Thestar.com February 27, 2020


IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Coastal GasLink Pipeline Ltd. v. Huson,
2019 BCSC 2264
Date: 20191231
Docket: S1854871
Registry: Prince George
Between:
Coastal GasLink Pipeline Ltd.
Plaintiff
And
Freda Huson, Warner Naziel, John Doe, Jane Doe
and all other persons unknown to the plaintiff occupying,
obstructing, blocking, physically impeding or delaying access at
or in the vicinity of the area in and around the Morice River Bridge
or the area accessed by the Morice West Forest Service Road
Defendants

The Office of the Wet’suwet’en participated in the Environmental Assessment
Office’s Working Group for the Pipeline Project and actively proposed an alternate
McDonnell Lake route for the Pipeline Project. The plaintiff explored and considered
the proposed alternate route but ultimately rejected it for various reasons, including
inappropriateness for the diameter of the pipeline, increased cost, the desire to avoid
urban areas and greater adverse environmental impacts. The plaintiff determined
that it was not able to re-route the Pipeline Project through Sections 7 and 8.


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