Comment: Whose land is it?: Seeking justice for First Nations

The stakes could not be higher.

Last weekend, Wet’suwet’en hereditary chiefs issued an eviction order to Coastal GasLink Pipeline, the company building the 670-kilometre long pipe that will transport fracked gas to a new LNG Canada facility being built near Kitimat.

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Coastal GasLink has temporarily withdrawn their personnel but are counting on the RCMP to enforce a permanent injunction issued by B.C. Supreme Court Justice Marguerite Church - on new year’s eve! The injunction prohibits any actions that might block construction.

The B.C. government is deeply complicit. Not only is it a major supporter of the LNG plant and pipeline, the Ministry of Energy, Mines and Petroleum Resources recently affirmed that “the Supreme Court of B.C. made a determination and its ruling confirmed the company is lawfully permitted to conduct the work.”

This gives a green light for the RCMP to again violently attack the Wet’suwet’en as they did in January 2019. Recent revelations regarding RCMP invoking “lethal overwatch” during last year’s confrontation further highlights the dangers faced by First Nations and their supporters.

The confrontation comes just as the UN Committee on the Elimination of Racial Discrimination has called for suspending construction of the Transmountain and Coastal Gaslink pipelines, as well as the Site-C dam.

Whatever happens, the ongoing threat of state violence to intimidate the Wet’suwet’en hereditary chiefs and their supporters is unforgivable given this province’s colonial history.

It makes a mockery of the B.C. government’s laudable passage of Bill 41 that aims to bring all B.C. laws into accord with the UN Declaration of the Rights of Indigenous Peoples.

That declaration proclaims that Indigenous peoples shall not be subject to violence (article 7); that governments must prevent “any action which has the aim or effect of dispossessing them of their lands, territories or resources” (article 8); that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (article 26.1), and much more.

Efforts by First Nations, legal experts and many historians have laid bare the sordid land grab for resource exploitation that epitomizes the history of this province. Our own research, to be published this month in BC Studies, confirms this history and takes it a step further.

In “Whose Land Is It? Rethinking Sovereignty in British Columbia,” we record how the W̱SÁNEĆ and Mowachaht/Muchalaht nations retain, in their own languages, concepts that reflect their traditional laws and governance over their lands. 

For W̱SÁNEĆ peoples, terms such as as TEṈEW̱ and NEHIMET, or for Nuu-chah-Nulth peoples terms such ḥahuułi and ḤuupuKʷanum continue to represent spiritual and legal beliefs founded on an organic sense of being in which people do not own the earth but rather belong to it. 

Thanks to the Wet’suwet’en hereditary chiefs, we now know that they too retain similar concepts in terms such as Anuc’nu’at’en. That First Nations share these common concepts is not a coincidence.

This love of the land has inspired First Nations to survive 170 years of dispossession in this province while fighting to regain their land rights, including both title to the land and to governance over it. In other words, fighting to regain their inherent sovereignty.

For the B.C. or federal government to impede this process, to employ divide-and-rule tactics pitting hereditary chiefs against band councils is unacceptable.

While forms vary from community to community, and nation to nation, generally elected chiefs and councils hold authority over reserve lands and infrastructure, while hereditary chiefs and elders maintain and uphold laws, beliefs and jurisdiction over territories. Indeed, it was the Wet’suwet’en hereditary chiefs who went to court and won in the landmark Delgamuukw case that affirmed Aboriginal title.

The elected chief and council system, imposed by the Colonial Government’s Indian Act, is designed to eradicate Indigenous governance systems. Historical and ongoing Colonialism is founded upon the dispossession of Indigenous lands and has First Nations living in a state of poverty and dependence. Many elected chiefs and councilors strive to uphold traditional Indigenous laws and belief systems, but they are also placed in a position of making difficult economic development decisions. This has to stop.

History, as we document in our study, is not on the side of the B.C. government.

Though the courts have ruled that B.C. gained sovereignty over these lands with the Treaty of Oregon, signed with the US in 1846, the basis of that ruling is faulty. The 1846 treaty was predicated entirely on the outdated Doctrine of Discovery that erased Indigenous peoples from the landscape.

Adding insult to injury, the B.C. legislature proceeded in 1872 to bar Indigenous peoples and Chinese settlers from voting, giving a minority of 10,000 white settlers a dictatorship over an estimated 40,000 Indigenous people and Chinese.

The B.C. government refused to negotiate treaties with First Nations in this province for 130 years or more.

B.C. became a province like no other – a form of settler colonialism founded on an undemocratic and arguably illegal white supremacist regime.

Much has changed since then – or has it?

The passage of Bill 41 would suggest that it has, but previous B.C. government actions suggest otherwise. As difficult as the choice may be – the government has a decision to make.

We believe the majority in this province, Indigenous and non-Indigenous, hope for a future that supports justice for First Nations, breaks with non-sustainable exploitation of natural resources, and opens pathways to finding relational ways of being one with the earth.

Standing in solidarity with the Wet’suwet’en is a step in that direction. The B.C. government needs to decide whether it will walk with the Wet’suwet’en, give substance to Bill 41, and enable justice and reconciliation to triumph. Or not.

The decision will affect us all.

Nicholas XEMŦOLTW̱ Claxton teaches in the University of Victoria's Faculty of Human and Social Development and is elected chief of the Tsawout First Nation.

John Price is UVic professor emeritus (history).

They will speak on the topic of “Whose Land Is It?” at 11 a.m. in the Ceremonial Hall in UVic's First Peoples House on Tuesday, Jan. 14. The event is free and open to the public. 

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