The rule of law is an important consideration in this dispute. Has Canada complied with its own legal requirements? That’s a question that has largely been ignored in the issuance of injunctions in disputes such as this. Canada’s obligation to resolve this jurisdictional dispute is clear from the case law, but it has failed to do so, mainly because it has declined to negotiate. Injunctions are supposed to be issued only to those “with clean hands” and Canada would likely fail on that point.
The argument that Chiefs and Band Councils along the route, may have signed Benefit Agreements can hardly be said to be proper consent, for I have seen some of them. They do not ask for consent, so much as promise payment for silence. But even if one argues the point, the failure to recognize the traditional law of the Wetsu’wetun is a fatal flaw to that argument. Courts have recognized that traditional Chiefs have an overall say over unceded territory.
Let’s say the United States wanted to run a pipeline from Alaska to Texas and got the BC Government to sign off, through promises of jobs and financial payments. Could Canada not rightfully say: “You need our consent too”? Such is the nature of the role of traditional chiefs.
How to resolve this is the issue. It seems clear that it will take more than words and promises, for history fails Canada on that point. I am reminded of a thought I once had when analyzing the treatment of treaties by governments and in the courts. Indigenous people must feel the way that Paul Simon expressed in his song “The Boxer”:
“I am just a poor boy though my story’s seldom told
I have squandered my resistance for a pocketful of mumbles,
Such are promises,..”
I have said in the past that, if ramped up, Indigenous resistance could paralyze the economy of this country. That resistance will not respond well to court injunctions or more “pockets full of mumbles”. Positive acts of resolution will be needed. Police and military enforcement will only serve to inflame matters.
Frankly, given Canada’s intransigence, and the rising sense of injustice felt by Indigenous leadership throughout the country, I do not like where this is heading.
Mizanagheezhick
Mizana Gheezhik (Sen. Murray Sinclair) 
Great piece. Thank you!
https://kerrycoast.wordpress.com/2017/12/11/the-best-of-all-titles-gitwangat-chiefs-1884/
136+ years, Git’ksan Wet’suwet’en chiefs have been asking the same thing. How long is long enough?
Who owns and controls the land comes before deciding what can be built on and through it. Horse before cart. Giddy-up, Canada.
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Thank you for this essay. Can you point to where Canadian law says the chiefs “have say” over unceded lands. Delgamuukw, para 115 says “Decisions with respect to that land are also made by that community”. That is the rub for me in this case. Why have the chiefs not gone out and demonstrated that they are representing the wishes of the community?
But perhaps if Canadian law states that they do not have to, that the chiefs hold this right, then I understand their actions.
Any help with getting a better understanding of this is much appreciated
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The laws of the people give the traditional chiefs that right, same as we do with the Prime minister who has the legal right to govern even if the majority of people don’t agree.
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but he only becomes Prime Minister if his party forms government through voting by the people. The hereditary chiefs become chiefs through a matrilineal process that does not provide for the people to vote. So the example you gave does not equate to the Wet’suwet’en system and does not in my mind equate to the people making the decision on how the land is to be used.
How do you reconcile the number of Wet’suwet’en people that elected band councils who then entered into agreements supporting the pipeline. And a vocal anti-pipeline candidate like Freda Huson only getting 14% of the vote when she ran for chief of the Witset band council in 2017? Does that not suggest to you that the people, the decision makers under Delgamuukw wanted the pipeline?
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When you apply colonial thinking to situations like this you inevitably miss the main point. The traditional chiefs hold office in accordance with traditional law. The PM holds office in accordance with Canadian law. Once in office each governs as they see fit, and the people must live with that until there is a change of governors or the governors decide differently. If the majority of the people don’t want the pipeline and the PM does, we get a pipeline. If the majority want one, and the PM doesn’t, we don’t get it. That applies in Wetsuweton territory. More to your point however, the Band Councils are really creatures of the federal government. In a Globe article one elected chief admitted he broke a tied vote at his council meeting to support the signing of an Impact Benefits Agreement. This, despite the fact that 70% of his community had earlier voted against the pipeline. I don’t believe for a minute that the majority of the people support the pipeline and I don’t believe that those chiefs who signed those agreements do either. Those agreements do not give consent. At most they are payments for silence.
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For many decades I have not liked where Canada is headed. It has been becoming more entrapped in the thinking of capitalism which values things/wealth over people and environment. This is the thinking of a child who inevitably destroys it’s toys. Unfortunately in this case the toys are the ecosystems themselves which support life. Part of not valuing people is not valuing the agreements made with the native peoples who value the ecosystems. It is time to change our value systems, to account for the productivity of nature and incorporate that into our actions. Unless we learn wisdom and stop this destruction we are killing our children and grandchildren. We need to listen to and act on the Senators wisdom.
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