Open Letter to Prime Minister Trudeau and Premier Horgan re: Wet’suwet’en Opposition to Coastal GasLink Project

Open Letter to Prime Minister Trudeau and Premier Horgan re: Wet’suwet’en Opposition to Coastal GasLink Project

by ahnationtalk on January 23, 2020255 Views

January 23, 2020

As most of you will be aware, the possible RCMP enforcement of an injunction against the Unist’ot’en (a client of ours) in response to their continued opposition to the Coastal GasLink pipeline has been in the national news.

Dozens of academics and lawyers from across Canada have signed the following letter urging the provincial and federal governments to meet directly with the Wet’suwet’en Hereditary Chiefs to open a nation-to-nation dialogue in the hopes of peacefully resolving the matter.

January 22, 2020

The Right Hon. Justin Trudeau
Prime Minister of Canada

The Hon. John Horgan
Premier of British Columbia

Via email

Dear Prime Minister Trudeau and Premier Horgan:

Re: Wet’suwet’en Hereditary Chiefs’ Opposition to Coastal GasLink Pipeline Project

We write as settler and Indigenous legal professionals from across Canada to express deep concern about the conflict regarding the Coastal GasLink pipeline in Wet’suwet’en territory. We call on the federal and provincial governments to meet with the Wet’suwet’en Hereditary Chiefs immediately and to address this issue in a manner that upholds the principle of reconciliation, the authority of the law of the Wet’suwet’en, the UN Declaration on the Rights of Indigenous Peoples and the honour of the Crown.

The police presence on Wet’suwet’en territory has intensified alarmingly since the December court order prohibiting individuals from obstructing the project, and the Hereditary Chiefs’ eviction notice to Coastal GasLink. Indigenous and human rights organizations, including the UN, have raised concerns about violations of Indigenous rights in Wet’suwet’en territory. Meanwhile, the Province has declined the Hereditary Chiefs’ requests to meet. Premier John Horgan recently announced that the “rule of law” must prevail and the project will proceed despite the Hereditary Chiefs’ opposition. He subsequently refused to meet with the Chiefs while in northern BC. Prime Minister Justin Trudeau has also distanced himself, calling the dispute a provincial matter.

We are deeply troubled by BC’s and Canada’s positions. This is not fundamentally a dispute between Coastal GasLink and the Wet’suwet’en, nor between Hereditary Chiefs and Indian Act band councils. It goes to the core of the relationship between the Crown and Indigenous Peoples and the obligations that arise therefrom. Both the provincial and federal governments must participate directly in its resolution.

The Hereditary Chiefs, not the band councils, were the plaintiffs in the landmark Delgamuukw-Gisday’wa case before the Supreme Court. The Court confirmed that the Wet’suwet’en never surrendered title to their ancestral lands, and accepted extensive evidence outlining their hereditary governance system. The fact that band councils have signed benefit agreements with Coastal GasLink cannot justify the erasure of Indigenous law or negate the Crown’s obligation to meet with the Hereditary Chiefs.

Nor can Wet’suwet’en opposition be resolved by meetings between Coastal GasLink and the Hereditary Chiefs. The Supreme Court has been clear: The Crown must engage directly with the Indigenous group whose rights are at stake. This obligation cannot be fulfilled by third parties with vested interests in the project’s success.

Premier Horgan’s insistence on the “rule of law” fails to acknowledge that the relevant law includes not just the injunction order but the Constitution, Supreme Court decisions, and – crucially – Wet’suwet’en laws and institutions. The laws of Indigenous Peoples, including the Wet’suwet’en, predate those of Canada, are equally authoritative, and are entitled to respect. In an age of truth and reconciliation, respect for the rule of law must include respect for the authority of Indigenous law and a commitment to work out a just and sustainable relationship between Indigenous and settler Canadian legal systems.

BC and Canada are obligated to act honourably in their dealings with Indigenous Peoples, including by engaging in respectful processes to advance reconciliation. Moreover, a key reason that the 1867 Constitution gave the federal government exclusive legislative authority over “Indians, and the lands reserved for the Indians” was the recognition that local settler communities might fail to respect the pre-existing relationships between Indigenous Peoples and their territories. The Supreme Court has repeatedly affirmed Ottawa’s responsibilities to Indigenous Peoples. For Canada to shirk them now would be contrary to a key principle of Canadian constitutionalism.

The federal and provincial positions risk undermining Canada’s collective effort to achieve meaningful reconciliation with Indigenous Peoples. We are just beginning to confront our shared colonial past and present, and to address the longstanding wrongs inflicted on Indigenous Peoples. Some governments have taken positive steps in this direction, including commitments to implement the Truth and Reconciliation Commission’s Calls to Action and the UN Declaration. These initial steps ring hollow when the Crown refuses to honour the Hereditary Chiefs’ request for a meeting, let alone recognize and respect Wet’suwet’en law.

More than twenty years ago, Chief Justice Lamer, writing for Supreme Court, recognized the Crown’s moral duty to engage in good faith negotiations with the Wet’suwet’en to resolve the issue of ownership and jurisdiction over their ancestral lands. This apt statement is reinforced by the growing appreciation that these negotiations are between two systems of legal and political authority. Reconciliation and justice cannot be achieved by relying on the RCMP or resource companies to do the Crown’s work.

We urge BC and Canada to meet with the Wet’suwet’en Hereditary Chiefs and to commit to a process for the peaceful and honourable resolution of this issue.

SENT ON BEHALF OF:

Dr. Gordon Christie
Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Jocelyn Stacey
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Stepan Wood
Professor, Canada Research Chair in Law, Society and Sustainability
Director of the Centre for Law and the Environment
Peter A. Allard School of Law
University of British Columbia

Patricia Barkaskas
Academic Director, Indigenous Community Legal Clinic
Peter A. Allard School of Law
University of British Columbia

Johnny Mack
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Efrat Arbel
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Margot Young
Professor
Peter A. Allard School of Law
University of British Columbia

Darlene Johnston
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Julen Etxabe
Canada Research Chair in Jurisprudence and Human Rights
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Debra Parkes
Professor and Chair in Feminist Legal Studies
Peter A. Allard School of Law
University of British Columbia

Lee Schmidt
Associate Director, Indigenous Legal Studies
Peter A. Allard School of Law
University of British Columbia

Dr. Emma Cunliffe
Associate Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Mary Liston
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Dr. Alexandra Flynn
Assistant Professor
Peter A. Allard School of Law
University of British Columbia

Brenda Gunn
Member of Métis Nation, Manitoba
Associate Professor
Robson Hall
Faculty of Law
University of Manitoba

Dr. David Milward
Associate Professor
Faculty of Law
University of Victoria

Alan Hanna
Assistant Professor
Faculty of Law
University of Victoria

Sarah Morales (Su-taxwiye)
Associate Professor
Acting JID Director
Faculty of Law
University of Victoria

Felix Hoehn
Assistant Professor
College of Law
University of Saskatchewan

Sakej Henderson
Research Fellow
College of Law
University of Saskatchewan

Dr. Beverly Jacobs
Barrister & Solicitor
Assistant Professor
Faculty of Law
University of Windsor

Dr. Claire Mummé
Associate Professor
Faculty of Law
University of Windsor

Gemma Smyth
Associate Professor
Faculty of Law
University of Windsor

Anneke Smit
Associate Professor
Director, Centre for Cities
Faculty of Law
University of Windsor

Jillian Rogin
Assistant (Clinic) Professor
Faculty of Law
University of Windsor

Sukanya Pillay
Visiting Professor and Law Foundation of Ontario Scholar
University of Windsor

Annette L. Demers
Law Librarian
Faculty of Law
University of Windsor

Robert Hamilton
Assistant Professor
Faculty of Law
University of Calgary

Dr. Joshua Nichols
Assistant Professor
Faculty of Law
University of Alberta

Kent McNeil
Professor
Osgoode Hall Law School
York University

Estair Van Wagner
Assistant Professor
Academic Director, Environmental Justice and Sustainability Clinic
Osgoode Hall Law School
York University

Deborah McGregor
Associate Professor
Canada Research Chair, Indigenous Environmental Justice
Osgoode Hall Law School & Faculty of Environmental Studies
York University

Naiomi W. Metallic
Chancellor’s Chair in Aboriginal Law and Policy
Assistant Professor, Schulich School of Law
Dalhousie University

Larry Chartrand
Full Professor
Faculty of Law, Common Law Section
University of Ottawa

Drew Lafond
President, Indigenous Bar Association
Partner, MLT Aikins LLP

The Honourable Stephen O’Neill
Ontario Superior Court of Justice (1999-2015) Retired
Associate Lawyer at Nahwegahbow, Corbiere (2016-present)

Laura Sharp
Secretary of the Indigenous Bar Association Board of Directors

Rheana E. Worme
President, Indigenous Law Students’ Association
University of Saskatchewan

Harold R. Johnson
LL.B. LL.M. (Harvard)
Retired Crown Prosecutor
La Ronge, Saskatchewan

Paul Joffe
Avocat/Lawyer

NT5

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