By Shayne Morrow
A growing list of B.C. First Nations have added their voices to a constitutional challenge to the Trudeau government’s approval of the proposed Pacific Northwest LNG (liquid natural gas terminal) near Prince Rupert, in Tsimshian traditional territory.
On Tuesday morning Jan. 10, two Gitxsan Nation hereditary chiefs, Charlie Wright (Luutkudziiwus) and Yvonne Lattie (Gwininitxw), filed a judicial review of the project, claiming the project was in infringement of constitutionally protected Aboriginal fishing rights.
They joined a gathering of hereditary chiefs and elected representatives for a media conference at the Vancouver office of the Union of B.C. Indian Chiefs.
The Gitxsan leaders are based on the upper Skeena River watershed near Hazelton. The Skeena River sockeye run has declined by 90 per cent since the 1960s.
Wright and Lattie cited a recent study by Simon Fraser University aquatic scientist Dr. Jonathan Moore, who concluded that the project, as proposed, has the potential to destroy the remaining Skeena River stocks.
Their message to government and the business community reflects their confidence in the justice of the case.
“We have a message for the Pacific Northwest LNG project’s investors in Asia. Sell your stock. The Canadian government’s decision to approve this project did not respect our fishing rights protected under the Canadian Constitution. We were not consulted,” Lattie told the assembled media.
“This LNG project will be stopped. We don’t give a damn about Christy Clark’s re-election, Trudeau’s deal-making, or Petronas’ hopes to sell fracked gas. That terminal is bad news for our salmon up the Skeena River,” said Richard Wright, speaking for Charlie Wright.
The Gitxsan judicial review follows a similar motion filed in federal court on Oct. 27 by the Gitanyow and Gitwilgyoots tribes, in partnership with the SkeenaWild Conservation Trust.
The $11.4 billion proposal advanced by the state-owned Malaysian LNG developer, Petronas, would see the construction of a gas liquefaction plant on environmentally-sensitive Lelu Island, with a 1.6 kilometre-long suspension bridge (price tag: $1 billion) running across Flora Bank, leading to an offshore export terminal on Agnew Bank.
Since August 2015, a rotating team of First Nations members, coordinated by Donald Wesley (Yahaan) and Ken Lawson (Gwishawaal), hereditary chiefs of the Tsimshian Gitwilgyots tribe of Lax Kw’alaams, has occupied the Lelu Island site.
The Trudeau government gave conditional approval to the current proposal in September, subject to 190 conditions. But since that conditional approval was given, Petronas has indicated it plans to make several key cost-cutting moves.
On Dec. 28, the Globe and Mail reported that the company was “mulling cheaper options” for the terminal. Citing the U.S. business news site Bloomberg, the Globe reported that Petronas was considering moving the export terminal to Ridley Island, which is managed by the Prince Rupert Port Authority.
The Ridley Island terminal would be connected to the Lelu Island liquefaction plant by a tunnel to be constructed under Porpoise Channel.
That site had become available when Canpotex Ltd. abandoned plans to build a potash export terminal on the site.
Complicating the picture, Royal Dutch Shell holds an LNG development license for much of Ridley Island.
John Ridsdale (Na’moks), clan chief of Tsayu clan of Wet’suwet’en, said his nation has not signed on to the court action, but is in full support.
“We are here to be united with them, working in the spirit of Gawa Gammi – roughly, working together,” Ridsdale told Windspeaker after the conference. “We are in North Central B.C. The proposed pipeline actually runs north of us. But one hundred per cent of the Skeena sockeye run passes through that terminal [site], and it is absolutely critical to the Wet’suwet’en. So if we don’t speak up for the salmon – our rights – who will?”
Ridsdale said there has been a complete lack of consultation with the upriver Nations, despite messaging to the contrary from Ottawa. During the process, which was conducted by the Canadian Environmental Assessment Authority, hereditary chiefs expressed interest in participating, but were excluded from receiving adequate funding for the level of scientific review required, or simply told they “were not directly affected by the project.”
Ridsdale pointed out that in this case, First Nations are dealing from a position of power.
“It’s all about money. If you don’t hit them where it hurts – in the pocketbook – they won’t listen,” he said. “And I remind them that we are carrying the longest winning streak in Canadian jurisprudence history.
“Here in the West, we are non-treaty, unceded. That’s what I reminded them today,” he said. “We have never signed a treaty, nor ceded nor surrendered our rights. The governments have only ‘assumed’ or ‘presumed’ authority.”
And on that basis, Ridsdale said, one could expect to chalk up yet one more court victory on the part of B.C. First Nations in the area of constitutionally protected rights.
But it won’t necessarily be cheap, he added. While in many court actions, court costs are typically awarded to the winning side, that is not always the case. Sometimes, the winner is saddled with a huge bill for legal help.
“But we can’t let the cost deter us from doing what we have to do to protect our rights,” he said.
Or as Richard Wright observed: “Some things are worth more than money. Salmon give us life.”
“We need to look at salmon enhancement, not salmon destruction,” Lattie added. “We need to save what’s left. The LNG project could ruin this sacred resource. We have to protect it.”
Wright noted that while there are B.C. First Nations who are ostensibly on board with LNG, the process, conducted by the province at the behest of the federal government, has been secretive and conducted without proper consultation.
“The Ministry of Aboriginal Relations and Reconciliation sneaks into our communities, cherry picks supportive chiefs, and makes backroom deals to make the appearance of Aboriginal buy-in,” he said.
For the Gitxsan, going head-to-head with the Canadian government is nothing new. In 1997, in what is now known as the Delgamuukw Decision, the Canadian Supreme Court affirmed recognition of the Gitxsan’s hereditary Aboriginal rights, which include fishing rights. By extension, Delgamuukw applies to all B.C. First Nations on unceded territory.