Open Letter to Prime Minister
Trudeau and Premier Horgan
- First Peoples Law -
Students walk out of Vancouver area schools and
universities, January 27, 2020, and rally at city
hall in solidarity with Wet'suwet'en.
Re: Wet'suwet'en Hereditary Chiefs' Opposition
to Coastal GasLink Pipeline Project
We write as settler and Indigenous legal
professionals from across Canada to express deep
concern about the conflict regarding the Coastal
GasLink pipeline in Wet'suwet'en territory. We
call on the federal and provincial governments to
meet with the Wet'suwet'en Hereditary Chiefs
immediately and to address this issue in a manner
that upholds the principle of reconciliation, the
authority of the law of the Wet'suwet'en, the UN
Declaration on the Rights of Indigenous Peoples
and the honour of the Crown.
 The police
presence on Wet'suwet'en territory has intensified
alarmingly since the December court order
prohibiting individuals from obstructing the
project, and the Hereditary Chiefs' eviction
notice to Coastal GasLink. Indigenous and human
rights organizations, including the UN, have
raised concerns about violations of Indigenous
rights in Wet'suwet'en territory. Meanwhile, the
Province has declined the Hereditary Chiefs'
requests to meet. Premier John Horgan recently
announced that the "rule of law" must prevail and
the project will proceed despite the Hereditary
Chiefs' opposition. He subsequently refused to
meet with the Chiefs while in northern BC. Prime
Minister Justin Trudeau has also distanced
himself, calling the dispute a provincial matter.
We are deeply troubled by BC's and Canada's
positions. This is not fundamentally a dispute
between Coastal GasLink and the Wet'suwet'en, nor
between Hereditary Chiefs and Indian Act
band councils. It goes to the core of the
relationship between the Crown and Indigenous
Peoples and the obligations that arise therefrom.
Both the provincial and federal governments must
participate directly in its resolution.
The Hereditary Chiefs, not the band councils, were
the plaintiffs in the landmark Delgamuukw-Gisday'wa
case before the Supreme Court. The Court confirmed
that the Wet'suwet'en never surrendered title to
their ancestral lands, and accepted extensive
evidence outlining their hereditary governance
system. The fact that band councils have signed
benefit agreements with Coastal GasLink cannot
justify the erasure of Indigenous law or negate
the Crown's obligation to meet with the Hereditary
Chiefs.
Nor can Wet'suwet'en opposition be resolved by
meetings between Coastal GasLink and the
Hereditary Chiefs. The Supreme Court has been
clear: The Crown must engage directly with the
Indigenous group whose rights are at stake. This
obligation cannot be fulfilled by third parties
with vested interests in the project's success.
 Premier Horgan's
insistence on the "rule of law" fails to
acknowledge that the relevant law includes not
just the injunction order but the Constitution,
Supreme Court decisions, and -- crucially --
Wet'suwet'en laws and institutions. The laws of
Indigenous Peoples, including the Wet'suwet'en,
predate those of Canada, are equally
authoritative, and are entitled to respect. In an
age of truth and reconciliation, respect for the
rule of law must include respect for the authority
of Indigenous law and a commitment to work out a
just and sustainable relationship between
Indigenous and settler Canadian legal systems.
BC and Canada are obligated to act honourably in
their dealings with Indigenous Peoples, including
by engaging in respectful processes to advance
reconciliation. Moreover, a key reason that the
1867 Constitution gave the federal government
exclusive legislative authority over "Indians, and
the lands reserved for the Indians" was the
recognition that local settler communities might
fail to respect the pre-existing relationships
between Indigenous Peoples and their territories.
The Supreme Court has repeatedly affirmed Ottawa's
responsibilities to Indigenous Peoples. For Canada
to shirk them now would be contrary to a key
principle of Canadian constitutionalism.
The federal and provincial positions risk
undermining Canada's collective effort to achieve
meaningful reconciliation with Indigenous Peoples.
We are just beginning to confront our shared
colonial past and present, and to address the
longstanding wrongs inflicted on Indigenous
Peoples. Some governments have taken positive
steps in this direction, including commitments to
implement the Truth and Reconciliation
Commission's Calls to Action and the UN
Declaration. These initial steps ring hollow when
the Crown refuses to honour the Hereditary Chiefs'
request for a meeting, let alone recognize and
respect Wet'suwet'en law.
More than twenty years ago, Chief Justice Lamer,
writing for Supreme Court, recognized the Crown's
moral duty to engage in good faith negotiations
with the Wet'suwet'en to resolve the issue of
ownership and jurisdiction over their ancestral
lands. This apt statement is reinforced by the
growing appreciation that these negotiations are
between two systems of legal and political
authority. Reconciliation and justice cannot be
achieved by relying on the RCMP or resource
companies to do the Crown's work.
We urge BC and Canada to meet with the
Wet'suwet'en Hereditary Chiefs and to commit to a
process for the peaceful and honourable resolution
of this issue.
For full list of signatories, click
here.
This article was published in
Volume 50 Number 2 - February 1, 2020
Article Link:
Open Letter to Prime Minister Trudeau And
Premier Horgan - First Peoples Law
Website: www.cpcml.ca
Email: editor@cpcml.ca
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