Feb. 18, 2020

Common sense update — gas pipeline project dispute/crisis

Here is an update that I hope further clarifies the issue.

On Sunday in a blog I tried to provide some clarity as to what is going on regarding what is now a crisis.

The B.C. Government has approved a large liquid natural gas (LNG) project at Kitimat, B.C. It is a plant and terminal. Natural gas is brought to the plant by pipeline, processed to liquid, loaded aboard LNG Tankers at the marine terminal and sent overseas. The construction at Kitimat is under way.

The natural gas for the plant has to be shipped by pipeline from near Dawson Creek, B.C. to Kitimat, a distance of over 600 kilometres; east to west. 

 Approval has been given by the Government of B.C. for this pipeline and construction is under way. 20 elected aboriginal leaders (band councils) who live along the pipeline route have approved the project signing agreements with the pipeline owner. 

The aboriginal group Wet’suwet’en aboriginal group in the area of the pipeline have a Wet’suwet’en Hereditary Chiefs organization who claim that their approval of projects on their traditional land must be given by them in accordance traditional custom and that their approval has not been given. And they have tried to stop the ongoing construction. The B.C. Government and the pipeline owner have gone to court and have been successful in getting court injunctions indicating that the present efforts to stop the project are illegal. Other groups sympathetic with the hereditary aboriginal group have blocked railways in various parts of Canada bringing passenger travel and freight commerce to a halt.  

According to Canadian law, reaffirmed by a recent Federal Court of Appeal decision on the expansion of the Trans Mountain project, there is no veto power existing with Aboriginal Groups to stop resource projects. Resource project proponents must do meaningful consultation and meaningful accommodation with Aboriginal groups who are affected as outlined in a number of decisions by the Supreme Court. If appropriate consultation and accommodation happen projects can proceed. 

However, one aboriginal group (Tsilhqot’in) through the courts has won (2014) “title” to land in another part of B.C. This is the only title award so far in Canada by an aboriginal group. In this title status a title holder can refuse a resource project. But the proponent can under the court decision awarding title, appeal this decision and, if the proponent meets prescribed conditions can go ahead with the project in the public interest of Canada. 

From what I can determine the Wet’suwet’en Hereditary Group are doing is CLAIMING TITLE since they think they meet the requirements that were in play for the first title award in 2014 by the Tsilhquot’in.

But CLAIMING title and HAVING title are two different things. At least that’s what I think. 

There is now an established process for an aboriginal group to follow to try to get title to land but as yet the Wet’suwet’en have not proceeded along that route. 

It seems the Federal Government will not enforce the court injunctions and wants to negotiate with the Wet’suwet’en.

The laws of Canada as interpreted by the courts have been violated but Governments are not prepared to see the court injunctions issued by the courts enforcing the law followed up and acted upon. 

A complicating matter is that Canada through the Federal Government of Justin Trudeau has approved the UN Declaration of The Rights of Indigenous Peoples which contains provisions which give the indigenous people an effective veto over any development that affects them on their traditional land. 

A final wrinkle is the Wet’suwet’en Group have just launched a court action alleging that the environmental process by the Province that saw a permit being issued to the pipeline owner was flawed. 

It is obvious that we are entering a new era where precedents are being set by Governments in their dealings with Aboriginal groups which see laws and court injunctions abandoned for a new negotiating process, the rules of which seem to being made up on the fly as the process moves along. 

That is as I see it at 4:14 Pacific time, February 18, 2020. 

The website of the hereditary Wet’suwet’en Chiefs is www. Watsuweten.com