The date is etched into the memory of Wet’suwet’en Hereditary Chief Na’Moks: December 11, 1997.
That’s the day when the Supreme Court of Canada recognized that the Indigenous nations of the Wet’suwet’en and Gitxsan had never agreed to give up their ancestral territory in northern British Columbia. The Delgamuukw ruling, as the decision was called, said that the province could not extinguish their rights, outlined how Indigenous groups could prove land claims, and set out what the government would have to do if it wanted to infringe on them.
After over a century of colonialism, land theft, and dispossession, the decision was monumental: Canada’s highest court had finally recognized that Indigenous nations had rights on the lands they had lived on for thousands of years.
First Nations leaders said the ruling—described as the “first definitive statement” on what constituted Aboriginal title—was a major step forward for Indigenous sovereignty. “In this case, the Supreme Court came down on the side of justice,” said the chief negotiator for the Gitxsan at the time.
But when The Nation reached Na’Moks in January, he said Canada was once again acting like that Supreme Court ruling had never happened. “We didn’t exist until December 11, 1997,” he said. “Think about that—and now they’re making it sound as if we don’t exist again.”
For years, Na’Moks (who also goes by John Ridsdale) and the rest of the Wet’suwet’en hereditary chiefs have been embroiled in conflict with a company called TC Energy and the BC government over the construction of a multibillion-dollar natural gas pipeline called Coastal GasLink that would cut through the heart of traditional Wet’suwet’en territory. Wet’suwet’en band councils, who are elected via rules set up by the Canadian government, supported TC Energy’s project. But the hereditary chiefs, who hold a more traditional form of authority, oppose it. In late January, as the hereditary chiefs fought to block pipeline construction, their showdown with TC Energy, the BC government, and the Royal Canadian Mounted Police exploded into a nationwide solidarity movement in support of Indigenous rights.
Long-simmering tensions began to boil over at the end of 2019, after a BC court cleared the way for the pipeline construction and the Wet’suwet’en hereditary chiefs delivered an eviction notice to Coastal GasLink in response. The RCMP raided encampments that the Wet’suwet’en had set up on their land to block construction—and solidarity actions spread across the country. Over the past two months, Indigenous groups and their supporters have staged mass demonstrations, sit-ins, and blockades of major railway lines, ports, and city streets from BC to Nova Scotia. Other First Nations, including Mohawks in Ontario and Quebec and Gitxsan in northern BC, have mobilized to support the Wet’suwet’en, and Indigenous youth in particular have emerged at the forefront, demanding that Canada recognize and respect Indigenous rights. Instead of calling themselves “protesters,” many prefer what they see as a more accurate term: “land defenders.”
"swipe left below to view more authors"Swipe →
The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
“Americans for Prosperity” and Nikki Haley Should Blame Themselves for Donald Trump
“Americans for Prosperity” and Nikki Haley Should Blame Themselves for Donald Trump
Blockades, especially those set up in Ontario and Quebec, have severely disrupted shipping and rattled the Canadian economy, forcing rail lines to suspend service and leaving goods stranded at port. And as solidarity actions have dominated the national news cycle, Indigenous communities have faced severe backlash in the form of racist abuse, delivered both in person and via threats online.
As the conflict has escalated, Indigenous advocates and legal experts have accused Canada of breaking its own laws and ignoring international standards.
On Sunday, after weeks of turmoil, representatives from the BC and federal governments and Wet’suwet’en Hereditary Chief Woos announced that they had reached a proposed agreement on Indigenous rights and title. The details of the deal have not been released, as it will first go to the Wet’suwet’en people for ratification. But the BC government confirmed that Coastal GasLink would be going ahead—so marches and occupations have continued, culminating in the arrest of five Indigenous youth at the BC Legislature last night.
These recent demonstrations build on a history of Indigenous direct action that has been gaining power since at least the 1990s. The issue gets at the heart of unresolved questions around Indigenous title and land rights, as well as Indigenous peoples’ ability to have a say in decisions that could impact those rights. Prime Minister Justin Trudeau—who three weeks ago called the continued direct actions “unacceptable” and demanded the removal of the blockades—has been widely criticized for his perceived failure to understand the depth of the problem, which many say should have been settled decades ago.
When The Nation reached Pamela Palmater, a Mi’kmaq lawyer and chair of Indigenous Governance at Ryerson University in Toronto, in January, she summed it up succinctly: “This is a human rights crisis.”
Palmater said that Canada was not following its own rule of law, Indigenous law, its international human rights obligations, or any of the decisions that have come out of the courts, because the Wet’suwet’en hereditary chiefs never gave “free, prior, informed consent” to the pipeline plan: “The issue is this clash of nonconstitutional rights of corporations, using the RCMP as their security force to violently put down Native people who are defending their constitutionally protected rights.”
The company behind the project, TC Energy (formerly TransCanada Corporation), says it has permits from the province to move ahead and that it signed deals with all 20 elected First Nation band councils along the pipeline route. (The BC government has also said it conducted “extensive consultations” with affected Indigenous groups, including the Wet’suwet’en band councils and hereditary chiefs.) TC Energy has promised that the pipeline would create 2,000 to 2,500 short-term jobs and generate hundreds of millions of dollars in economic benefits, of which First Nations communities in northern BC would get a share. But Na’Moks questions those claims.
He said that the pipeline would infringe upon areas that hold cultural significance to the Wet’suwet’en, and they feel a responsibility to protect the land for future generations. If completed, the 416-mile Coastal GasLink would pump natural gas from northeast BC to a terminal near the coastal town of Kitimat, where it would be prepared for export overseas. Its route would run close to a river system that provides the Wet’suwet’en with clean water and salmon and feeds into BC’s longest rivers, the Skeena and the Fraser.
“Ruin our territory, put a price tag on our rights, titles, and freedoms, our clean water, our food sources, our sacred sites… for what?” Na’Moks asks.
Ever since the land now known as Canada was first colonized by the British and French, what many Indigenous people call the settler government has sought to control the people who already lived there and disrupt their power structures.
One way it did this was by passing the Indian Act of 1876, which determined who could get “Indian status,” confined Indigenous people to reserves, and replaced traditional governance with a system of elected band councils and chiefs. The government also pushed many First Nations to sign treaties, which it used to claim even more land. But the treaty process was never completed in BC—where Wet’suwet’en territory lies—and most of the land in the province remains unceded. (Importantly, some Indigenous scholars reject the ceded–unceded dichotomy, pointing to the fact that the treaty process and land claims policy sought to remove Indigenous people from their territories so non-Indigenous groups could exploit the land freely.)
Recognition of the existing title of Indigenous peoples has been part of Canada’s Constitution since 1982. When the Supreme Court of Canada made its 1997 ruling, it acknowledged that Aboriginal title “arises from the prior occupation of Canada by Aboriginal peoples,” and said Canada had a “duty to consult” Indigenous peoples whose rights may be affected by major resource development projects—as well as a duty to accommodate them when their rights were infringed upon.
Canadian courts have set out how consultation and accommodation must be carried out: Consultation must be carried out in “good faith” on both sides, and what’s known as the “honor of the Crown”—meaning, in this context, that the government must act fairly in negotiations with Indigenous peoples—must be upheld throughout the process. Indigenous peoples often say the government’s approach falls short of that standard. One lawyer, writing for the magazine Policy Options, summed it up this way: Canada has “treated Indigenous consultation and rights as a burden, always seeking to do the least possible.” While the government can assign some aspects of consultation to other bodies (such as, say, an energy company), it cannot delegate the “honor of the Crown” itself. That means that the responsibility for consultation ultimately lies with the state.
But even the Wet’suwet’en—who hold a strong legal position, thanks to the 1997 decision—say the governments of BC and Canada have failed to properly consult them.
Justin Trudeau once pledged to build a new relationship with Indigenous peoples based on mutual respect and recognition. In 2015, when he was first campaigning for prime minister as head of the Liberal Party, a new report had just been released by a Truth and Reconciliation Commission, with a long list of recommendations for improving the Canadian government’s relationship with Indigenous people. Trudeau promised that he’d follow that document if elected prime minister, and claimed that working toward reconciliation was a top priority. “There is no relationship more important to me—and to Canada—than the one with First Nations, the Métis Nation, and Inuit,” he said upon being elected.
Last summer, Trudeau pledged that he was planning to incorporate the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)—which Canada initially opposed—into Canadian law. UNDRIP, which has been adopted by at least 144 countries, states that nations need to secure free, prior, informed consent from Indigenous groups before taking action that would affect their rights. In November, before the federal government had moved to adopt it, BC became the first place in Canada to pass legislation aiming to bring its laws in line with UNDRIP.
Last month, the Trudeau government said it was postponing its own UNDRIP bill because of the blockades. And despite BC’s adoption of the declaration, it almost immediately contradicted it.
Coastal GasLink was first announced back in 2012. This past December, the UN Committee on the Elimination of Racial Discrimination called on Canada to suspend the project, as well as a planned expansion of the Trans Mountain pipeline and construction on the Site C dam, a hydroelectric project in northeast BC. The committee said that because the projects hadn’t secured free, prior, and informed consent from all Indigenous peoples affected, the government should not allow them to move forward.
But BC Premier John Horgan responded that his province’s UNDRIP legislation would not apply to Coastal GasLink because the pipeline was approved before the law was passed. On the last day of 2019, the BC Supreme Court issued an injunction favoring TC Energy, allowing the company to continue building Coastal GasLink.
Indigenous leaders have slammed the use of injunctions to push through these types of contested projects; some say they’ve become a legal loophole to allow building on Indigenous land. Researchers at the Yellowhead Institute, a First Nations–led think tank in Toronto, recently examined more than 100 injunction cases involving Indigenous peoples in Canada. They found that 76 percent of injunctions filed by corporations against First Nations were granted, while 81 percent of injunctions filed by First Nations against corporations were denied.
Shiri Pasternak, the institute’s research director, said those findings indicate that Canadian law is “being weaponized [to prevent] Indigenous people from having access or being able to access their own lands.” Companies are circumventing the underlying questions around land title, she said, by going to lower courts to get these injunctions. “That’s the real travesty here,” she said. “That these decisions should not be made through injunctive relief. Never.”
Sheryl Lightfoot, Canada research chair in global indigenous rights and politics at the University of British Columbia, is Anishinaabe and a citizen of the Lake Superior Band of Ojibwe. She said that Canada’s unilateral claim of sovereignty over the land lies at the heart of these disputes, and that it was no coincidence that many of the recent confrontations over resource projects are happening in BC, where most of the territory is unceded. Without a formal treaty in place, it’s easier to exploit the legal gray area. “The Canadian courts have understood that unless there has been proper cede and surrender, Aboriginal rights and title continue to exist. They are underlying,” she said.
In the face of yet another injunction, direct action could feel like the only viable option.
Coastal GasLink was not the first pipeline to be proposed for Wet’suwet’en land. The first roadblock against these kinds of projects was set up in 2009 on the land of the Unist’ot’en, one of the Wet’suwet’en house groups. Land defenders built a cabin and other structures, and other camps and roadblocks were set up nearby, along a narrow, tree-flanked service road that is covered by deep snow in the winter. The Unist’ot’en Camp has grown progressively over the past 11 years, and is now home to a traditional Wet’suwet’en healing center and a bunkhouse for visitors, among other buildings.
In January 2019, after rounds of consultations and court hearings, a BC court issued a temporary injunction allowing TC Energy to build in the area. Soon after, heavily armed RCMP officers raided one of the Wet’suwet’en roadblocks and arrested 14 people. The police were widely criticized for their actions by civil rights groups and Indigenous advocates; The Guardian later reported that the RCMP had authorized the use of “lethal” force during that dispersal—including the deployment of snipers. An RCMP office was set up on Wet’suwet’en territory. Land defenders say they have been under constant surveillance and threat of violence ever since.
The Wet’suwet’en fight has parallels with another fierce, Indigenous-led opposition movement, based over 450 miles southeast near the small town of Blue River, BC. There, a group from the Secwepemc Nation known as the Tiny House Warriors has set up an encampment of small homes on wheels, which they plan to place along the route of the Trans Mountain pipeline—one of the other projects that the UN called on Canada to suspend. Like the Coastal GasLink case, Trans Mountain has pushed long-standing questions to the fore around how and to what extent Canada truly consults Indigenous peoples, and when it can infringe on Indigenous title and rights.
The Trans Mountain pipeline has run from a terminal in Edmonton, Alberta, to the BC coast since the 1950s. In 2013, then-owner Kinder Morgan Canada, a subsidiary of the US oil giant, applied to twin the pipeline so it could ship as many as 890,000 barrels of oil per day—nearly three times its current capacity—to a terminal near Vancouver, for shipment overseas. To do that, the pipeline would increase the capacity running across Secwepemc lands, to which the Secwepemc people collectively hold title under their nation’s laws. The twinned pipelines would transport both refined oil and heavier, crude oil, including bitumen, which environmentalists say is especially difficult to clean up after a spill.
Canada purchased the Trans Mountain pipeline from Kinder Morgan in August 2018; Trudeau later vowed to use the revenue it would generate to combat climate change. Trans Mountain signed deals with dozens of First Nations along the pipeline route—but multiple Indigenous groups say they never gave their permission for it to be built, and have fought it both with occupations and in court. Last month, after a protracted legal battle, the Federal Court of Appeal dismissed the case, saying that “the law does not require that the interests of Indigenous peoples prevail.”
One of the Tiny House Warriors, Kanahus Manuel, maintained that regardless of what the court decided, Canada never received the consent of the Secwepemc people to go forward with the Trans Mountain project. A pipeline spill on Secwepemc territory could flow into the headwaters of the Fraser River, which feeds into streams and waterways across the province—doing irreparable harm to the environment and to the Secwepemc way of life.
“We’re an Indigenous people and we’re fighting for full, 100 percent jurisdiction and authority and self-determination over our nations,” said Manuel. “This is an international issue what’s happening here.”
Several of the Secwepemc land defenders, including Manuel and her sister Mayuk Manuel, have been arrested for resistance actions against Trans Mountain. They’ve been hit with charges for mischief and intimidation, among others, and Kanahus said the RCMP routinely harasses them. “They’ve been deploying choppers and heavily armed patrols in our area,” she said in December.
“Just as we’re the front line of our movements and our fight for Aboriginal title and rights,” she added, “the RCMP are the front line for Canada.”
The RCMP has a “very long legacy” of focusing on leftist movements and Indigenous communities, said Jeffrey Monaghan, a professor at Carleton University in Ottawa who studies the policing of social movements. He pointed out that the RCMP have intensified their responses to Indigenous-led opposition to major resource projects in particular, including the Algonquins of Barriere Lake blockades in Quebec, actions against the Northern Gateway pipeline project through Alberta and BC, and the countrywide Idle No More movement, which saw mass sit-ins, rallies, and other actions to assert Indigenous rights across Canada.
“The reason they are under such intense police scrutiny is because they are the type of political [movement] that the RCMP and the Canadian establishment have always seen as a form of threat,” said Monaghan, explaining that they could undermine Canada’s material or economic interests.
“There [are] some immaterial threats that the RCMP are never going to acknowledge,” he continued. “When Indigenous nations proclaim sovereignty and challenge the imposition of Canadian law, they are threatening the police’s authority.”
Ellen Gabriel—an Indigenous human rights and environmental activist from Kanehsatake, a Mohawk community west of Montreal—said it’s disheartening to see what’s happening to the Wet’suwet’en today. “And I feel for the people who are there, because I know what it’s like.”
In 1990, Gabriel was at the forefront of a 78-day standoff between the Canadian military and Indigenous land defenders on her people’s territory, an event now referred to by some as the Oka Crisis. The confrontation began when the town of Oka, Quebec, tried to build a golf course on a historical Mohawk burial ground. Some members of the Mohawk community set up a barricade to stop the project; when provincial police were sent in to dismantle it, one officer was fatally wounded in an exchange of fire. The Canadian military later deployed 4,500 troops to the scene. The standoff ended in September 1990, when Mohawk activists—several of whom had been injured—left their encampment.
Gabriel said these situations demonstrate just how little recourse Indigenous people in Canada have to protect their rights, as well as Canada’s unwillingness to implement its own recommendations for improving relations. She said those put forward in reports by the Truth and Reconciliation Commission in 2015, or the Kanehsatake–inspired Royal Commission on Aboriginal Peoples in 1996, remain unfulfilled.
“People and government need to understand that we are nations,” said Gabriel. “We’re sovereign nations and what they’re doing is occupying our lands and…they’re trampling on our rights. There are a lot of changes that need to come, but it comes from education—educating the public, educating the court system.”
The Coastal GasLink dispute has also brought renewed attention to Indigenous governance systems in Canada, and the conflicting views within Indigenous groups over who can make decisions on behalf of a community. Each Indigenous nation has its own specific decision-making system in place, but band councils and chiefs generally hold authority over what happens on reserves—the communities set up under the Indian Act—while hereditary chiefs, such as Na’Moks of the Wet’suwet’en, represent a more traditional form of governance that existed prior to the establishment of Canada.
TC Energy has touted its approval for Coastal GasLink from elected band councils and chiefs—even though hereditary chiefs, not band councils, maintain decision-making power over the territories through which the pipeline will cross. Some Wet’suwet’en have come out in support of the project, and it remains unclear what percentage support or oppose it. But the hereditary chiefs maintain that they hold decision-making power and that they came to their decision after meeting collectively, as prescribed under Wet’suwet’en law.
“Corporations need to know and understand that drive-by consultation is no longer acceptable,” said Stewart Phillip, the president of the Union of British Columbia Indian Chiefs, a group that defends Indigenous title in the province, in a news conference showing support for the Wet’suwet’en in January.
“There has to be a very meaningful, deep, thorough consultation with the entire nation, not just a handful of band councils,” said Phillip. Reconciliation, he added, “will never be achieved at the point of an RCMP sniper rifle.”
Less than three weeks after the BC Supreme Court extended the injunction to allow TC Energy to keep building, Premier Horgan went on a multi-stop tour of BC’s northwest. Wearing a hard hat, red coveralls, safety goggles, and a reflective vest, he posed for photos with workers at the site of Coastal GasLink’s future LNG terminal, where the natural gas pumped through the pipeline would be transformed and shipped abroad. While Horgan was preparing for his tour, the RCMP had moved back on to Wet’suwet’en land. They set up an “exclusion zone” on the forestry road where opposition camps were set up; land defenders, journalists, and legal experts said they were being blocked from that part of Wet’suwet’en territory.
Wet’suwet’en hereditary chiefs asked Horgan to meet them while he was in the region. The premier declined. “I’m not going to drop everything I’m doing to come running when someone is saying they need to speak with me,” he told a CBC reporter.
Talks between the province and the hereditary chiefs later that month quickly fell through. Soon after, the RCMP raided Wet’suwet’en camps and arrested land defenders there. That raid took on a symbolic dimension: When officers broke in to the Unist’ot’en camp, they had to dismantle a wooden barricade painted with big, black letters: The sign read reconciliation. Afterward, Wet’suwet’en and other Indigenous land defenders spread the message during demonstrations and over social media: “Reconciliation is dead.”
Economists and industry representatives say the countrywide movement has hurt the Canadian economy. Blockades erected along railway lines and at the Port of Vancouver prompted a shutdown of commuter and cargo routes. By February 20, dozens of ships were parked off the coast of Vancouver, waiting to transfer goods; ports in Halifax, on the opposite coast, were at full capacity. Canadian National Railway said blockades had forced it to temporarily lay off 450 workers in eastern Canada. (It later said it had started calling some of those workers back.)
When The Nation reached the BC Ministry of Indigenous Relations and Reconciliation via e-mail on January 15, a spokesperson said flatly that the BC government would not be revisiting past permits with regards to Coastal GasLink. They were more sanguine in a follow-up sent February 28. “Negotiation and collaboration are the best way to work through these difficult issues together,” the spokesperson wrote. “We expect rights and title to be an important part of the current discussions between Wet’suwet’en hereditary chiefs and the provincial and federal governments.”
As some blockades—including the one erected at Kahnawake outside Montreal, which came down today—are removed by land defenders, the movement has continued. The Kahnawake occupation moved over to the side of a nearby highway; yesterday, students across Canada staged a countrywide walkout in support of the Wet’suwet’en, with hundreds marching in major cities.
“We just know we’re going to remain,” said Hereditary Chief Na’Moks back in January. “We are not moving. This is our territory, and so we will protect it peacefully.” After all, he said, “we’ve protected our lands for thousands of years.”
When Trudeau first expressed his support for UNDRIP, the prime minister claimed to recognize the importance of Indigenous consent. When the BC government adopted UNDRIP’s principles last fall, said UBC’s Sheryl Lightfoot, it was “a moment of accountability, saying, ‘We know the way we’ve been doing business is not proper. We want to change. We don’t know exactly where we’re going, but we intend to all sit down together to figure it out.’”
The government’s insistence on pushing through Coastal GasLink anyway not only ignores UNDRIP, Lightfoot asserted; it also ignores the fact that the project was contested from the start. Canada is at a critical moment, when it needs to choose the path it wants to take in its relationship with Indigenous peoples. “It isn’t just an intention to work together to resolve those issues when it’s easy,” said Lightfoot. “It’s also about when it’s most difficult.”