First test of UNDRIP Act and BC Premier Horgan fails—miserably

The “new era of rights recognition and cooperation” promised by British Columbia Premier John Horgan last December at the Assembly of First Nations Special Chiefs Assembly will have to wait until after Coastal GasLink completes its development in Wet’suwet’en territory.

Horgan announced that Bill 41, the legislation to implement the United Nation Declaration on the Rights of Indigenous Peoples, adopted unanimously by all political parties in BC, would not be enacted for the 670-kilometre pipeline, which is part of a $40 billion LNG Canada project.

While approval for the pipeline has been received from the 20 First Nations along the route, which stretches from near Dawson Creek and extends to an export terminal at Kitimat, the Wet’suwet’en hereditary chiefs are opposed.

In a news conference on Jan. 14, Horgan stated, “Our document, our legislation, our declaration is forward looking …. It's not retrospective.”

Horgan’s announcement followed the BC Supreme Court’s Dec. 31, 2019 decision to extend an injunction against Wet’suwet’en members and anti-pipeline supporters.

Grand Chief Stewart Phillip, head of the Union of British Columbia Indian Chiefs, says he was disappointed by Horgan’s decision.

Horgan singled out Phillip when he addressed the AFN chiefs in assembly in December, noting that Phillip had spoken “eloquently” about the new legislation that would allow Indigenous and non-Indigenous people to work together.

Now, Phillip says Horgan’s stand “certainly represents a contradiction….We’re talking about the glorious path forward and how we’re going to ensure that there was thorough, adequate and full consultation to the point of these projects are going to enjoy the support of all of the people, hereditary as well as councils. This was the first test and the provincial government failed, miserably failed to uphold the principles of Bill 41.”

Bill 41 calls for the government to consult with Indigenous peoples to ensure the province’s laws are in line with UNDRIP and to prepare an implementation and action plan. It also reads “the provincial government and Indigenous governing bodies may, through a negotiated agreement, provide for certain statutory decisions to be made jointly, or require the consent of Indigenous governing bodies before a statutory decision, like a project approval, is made.”

Wet'suwet'en Hereditary Chief Na’Moks (John Ridsdale) points out that on Bill 41 the government consulted with the First Nations Leadership Council, which comprises representatives from the UBCIC, First Nations Summit and BCAFN, but does not include hereditary chiefs. And although Bill 41 refers to the government making “agreements with Indigenous governing bodies outside of those defined in the Indian Act,” it’s the support of the Indian Act bands that Horgan draws upon as to why the Coastal GasLink project will go ahead.

“It does say (Indigenous governing bodies outside of those defined in the Indian Act) in there, but you’ve got to take a look at the way they wrote it. It’s a pretty slippery slope in there, too. It says ‘recognize.’ But who needs recognition? … We need to be recognized by somebody else to have a voice? No. Our hereditary system should automatically be in it. We never lost it. We shouldn’t have to prove that we’re hereditary chiefs. I think that BC and Canada have to prove to us that they have authority on our lands because we never signed a treaty. We never ceded nor surrendered,” said Na’Moks.

It’s with this authority that Wet’suwet’en set up the Unist’ot’en camps on their land in January 2019. That action led to arrests and subsequent disturbing reports that the RCMP were prepared to shoot and violently remove Wet’suwet’en land defenders.

Now, Na’Moks says they are currently working on another camp where the RCMP set up an exclusion zone on Jan. 13. That access-control checkpoint at the 27-km mark of the forestry road is, according to the RCMP, to “mitigate safety concerns related to the hazardous items of fallen trees and tire piles with incendiary fluids along the roadway, and to allow emergency service access to the area.”

Na’Moks scoffs at remarks made by Horgan that the relationship with the Wet’suwet’en is better today than it was last year.

“You have to remind yourself, January of last year, there were guns pointed at us. So January of this year, no guns pointed at us – yet. So that does prove the relationship is better. Is that what he meant? We don’t have guns pointed at us at this moment? So the way of his context of understanding things, is improper,” said Na’Moks.

He says Wet’suwet’en will not be responding to invitations from Coastal GasLink to talk to the company. Instead, he’s holding out for discussions with the BC and federal governments.

“Why would we want to say we want to meet with a proponent because they’ll twist it around and say they’re having consultations with us. That is not proper. Decision makers should talk to decision makers. If (Canada or BC) want a nation-to-nation relationship it should be nation-to-nation not a proponent,” he said.

Na’Moks’ criticism of Horgan and his government goes beyond the lack of input hereditary chiefs had in the development of Bill 41. It goes to the Horgan’s comments at the Jan. 14 press conference that the “rule of law” will apply to ensure work continues on the Coastal GasLink pipeline.

“I think his comments were quite inflammatory,” he said.

AFN National Chief Perry Bellegarde referred to Horgan’s comment as “regrettable.” In a tweet, Bellegarde said “’rule of law’ includes honouring First Nations laws in their traditional territories.”

Only six weeks earlier, Bellegarde had lauded Horgan for his leadership as “the first (government) in Canada to pass legislation to recognize and look at ways to give legal effect to the United Nations Declaration on the Rights of Indigenous Peoples. We want to acknowledge that.” Horgan was recognized in a blanket ceremony and water smudging.

Cheryl Casimer, with the First Nations Summit, was serving as proxy chief and took part in that ceremony.

“I’m still going to give recognition to the fact that British Columbia is the only jurisdiction that has sat down and undertook this initiative in terms of co-developing legislation on the United Nations declaration,” she said.

However, she admits she was disappointed by Horgan’s “rule of law” comment, although she believes he was “shooting from the hip” when he said it.

“If we’re going to be talking about rule of law there’s a number of Supreme Court decisions that came from British Columbia dealing with rights and title that should have become the rule of law at the time those rulings came to be, whereas it hasn’t. As a result of that, that’s why we see conflict,” she said.

Among those rulings is the Delgamuukw decision in 1997 where the Supreme Court of Canada recognized that Aboriginal title constituted an ancestral right protected by Section 35 of the Constitution Act. The case was brought to the Supreme Court by the Wet’suwet’en and Gitxsan who challenged BC.Casimer holds, however, that right now Bill 41 “is just a framework” and there is much work ahead to implement it.

“The situation with Wet’suwet’en is quite complex and I don’t think there is an easy solution to be able to address that other than the fact there needs to be the space created and the support made available to them to be able to work this out amongst themselves,” she said.

Such space is crucial, says Drew LaFond, a member of the Indigenous Bar Association, but almost impossible as First Nations, who are trying to improve their own relationships and need to develop and implement internal mechanisms, constantly face political crises or social crises.

“I don’t think a lot of bands have the luxury of debating and reinvigorating their laws from an existential standpoint. Most of the First Nations or Indigenous groups out there who are trying to reinvigorate or reinvent their laws are doing it in a time of crisis, whether it’s a health crisis, mental health crisis, whether there’s a lingering threat of external projects that might affect their ability to exercise their rights,” he said. “And that’s never an ideal circumstance.”

This particular situation is further complicated, he adds, because it is playing out in the only provincial jurisdiction that has legislation to implement UNDRIP and has manifested itself in an internal struggle between hereditary chiefs and Indian Act chiefs.

“When you start talking about introducing core principles in UNDRIP into the legislative framework, one of the principles that’s becoming more and more underlined… (is) provisions within UNDRIP that clearly acknowledge that Indigenous laws must be given primacy within Indigenous communities and those laws must inform dispute resolution processes within communities,” said LaFond.

However, without those internal dispute mechanisms in place, it’s the BC court that makes the decisions.

 “Until Indigenous peoples have the resources to operate their own adjudicative bodies, parties are going to have to resort to external decision makers and the result will, when you have an external decision maker making decisions for Indigenous communities, the result may invariably be less than ideal,” said LaFond.