[rad-green] OPEN LETTER TO PRIME MINISTER TRUDEAU AND PREMIER HORGAN RE: WET'SUWET'EN HEREDITARY CHIEFS' OPPOSITION TO COASTAL GASLINK PIPELINE PROJECT

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OPEN LETTER TO PRIME MINISTER TRUDEAU AND PREMIER HORGAN RE: WET'SUWET'EN
HEREDITARY CHIEFS' OPPOSITION TO COASTAL GASLINK PIPELINE PROJECT

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 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

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