Native Conflicts vs the Economy

[Rifleman62]

http://nationalpost.pressreader.com/national-post-latest-edition/20190111

Why Native Conflicts Often Seem Insolvable - National Post - 11 Jan 19 - Kelly McParlaned
    HEALTHY DOSE OF SCHADENFREUDE TO BE HAD FROM THE TROUBLE IN B.C.

It might not seem immediately evident, but it’s possible the confrontation that has been taking place in a remote northern area of British Columbia will prove to be an important moment in Canada’s long, difficult struggle to come to terms with First Nations bands.
The situation offers a distillation of the dilemma that often makes relations with natives seem insoluble. That is, how can you reach agreements with a community that can’t agree with itself? The dispute between Coastal GasLink, a subsidiary of TransCanada Corp., and some elements of the Wet’suwet’en Nation, rests not with the gas company, the government, the police, the courts or any of the people doing their best to meet all required parameters for dealing fairly and equitably with First Nations. It’s an argument between one set of native leaders and another. It’s also a problem only the natives can solve, and it raises a serious concern over whether Aboriginal communities will ever make serious advances in putting behind them the poverty and despair that plagues so many of their people until they find a way to resolve it.

In this case, the elected representatives of all 20 band councils along the route of a 670-kilometre pipeline have agreed to the plan. And no wonder: it would provide hundreds of millions of dollars worth of benefits, jobs, income and hope, and give the bands an enormous boost from the lands they have fought so hard to protect. But, as anyone with a passing awareness of Aboriginal politics knows, Canada’s First Nations communities are not one big unified family, but a vast, complex, diverse, sometime fractious and often competing universe of interests and agendas. It is rarely clear where the power lies, who speaks for who, and what level of support can be claimed by any individual or group.

There is no overriding governing body to render final decisions when needed, or a judicial system able to issue judgments all parties are compelled to obey. Although Canadian courts make rulings on First Nations questions, it’s a toss-up as to whether they can be enforced. In instance after instance we have seen judges issue orders, only to have them ignored by bands who maintain they’re not bound by “settler” or “colonial” law. The majority does not necessarily rule; a small but determined portion of a larger community can stymie the will of the others. “Our law trumps Canada’s law,” declared Joyce Eagle, in justifying defiance of the B.C. court’s order.

As a result, no agreement can ever be deemed final. There is always the danger a deal struck with good intentions on all sides will come unstuck when the consensus among First Nations members suddenly dissolves over matters non-natives are helpless to affect.

Pandering by Canadian governments at all levels has made a difficult situation far worse. Federal, provincial and municipal governments have all shown themselves to be too terrified by the prospect of confrontation, and the public backlash it has often produced, to respond to native challenges with anything but abject surrender. All it takes is a small roadblock, a moderate-sized protest march or a few tents by a roadside to send elected politicians scurrying for cover.

Even as police were preparing to clear a blockade under a B.C. Supreme Court injunction, the province’s natural resources minister, Doug Donaldson, turned up with his wife to hand over a box of goodies and offer his support to the hereditary chiefs defying the court. Prime Minister Justin Trudeau, who was forced to relocate a meeting with one set of chiefs when a protest group invaded the venue, pleaded for a cooling of temperatures, but Trudeau is as culpable as anyone — and more so than many — in striving to settle intractable differences with promises that can’t be kept and are bound only to increase the sense of aggrievement and accusations of bad faith.

It was Trudeau who, on the day the Truth and Reconciliation Commission issued its 2015 report, immediately pledged to implement all 94-plus recommendations, without bothering to calculate the cost or practicality, or to consider the impact on First Nations’ sentiments when he inevitably proved unable to fulfil his vow. Having shown himself to be just another big-talking politician, he now finds himself lacking the authority or influence to deal with situations like the one in B.C. He says he won’t visit the site and pleads for understanding. As with so many previous examples of Liberal happy talk proving ineffectual in solving real-world conflicts, he seems wholly unprepared for the fact many people can’t be won over by boyish charm and an arsenal of cheery bromides.

There is a healthy dose of schadenfreude to be had from the trouble in B.C. The province’s New Democratic Party government has blatantly obstructed the Trans Mountain oil pipeline that is of such vital concern to Alberta and the larger Canadian energy industry, meeting every plea with weasel words and left-wing posturing. Now it finds itself similarly stymied in a project it considers as crucial to B.C. as Trans Mountain is to Alberta. The gas pipeline is part of a $40-billion liquefied natural gas project unveiled with great fanfare by Trudeau with great fanfare by Trudeau and Premier John Horgan in October. Trudeau hailed it as “a vote of confidence in a country that recognizes the need to develop our energy in a way that takes the environment into account, and that works in meaningful partnership with Indigenous people.”

Then, with the plan suddenly under threat, the best he could offer the CBC was: “There are a number of people and communities who are supportive, there are a number of folks who disagree.”

With projects in Alberta and B.C. both in danger, perhaps — just perhaps — “progressives” like Trudeau and Horgan will begin to understand the need to come to terms with Canada’s Aboriginal communities in a way that moves beyond apologies and high-toned rhetoric, gets past pandering and posturing, and treats Canada’s need to develop its resources for the benefit of all Canadians with equal weight as the guilt it feels over injustices perpetrated by past generations.

 

[Colin Parkinson]

I have worked with the Haisla, one of the "switched on bands"

https://www.youtube.com/watch?v=tZjwON05pXo

Chief Ross has now become a politician

https://www.youtube.com/watch?v=jogR08Qw__4

 

[Rifleman62]

https://theprovince.com/news/local-news/wetsuweten-dispute-over-pipeline-deal-illustrates-complexities-of-indigenous-law/wcm/65c241fc-d150-4e79-a1a2-a8ce97f86555

Wet'suwet'en dispute over pipeline deal illustrates complexities of Indigenous law - The Province - 11 Jan 19
    The Wet'suwet'en elected council made an agreement with Coastal GasLink over its proposed pipeline, but hereditary chiefs argue
      it doesn't have authority off reserve.

Wet’suwet’en First Nation hereditary chiefs have reached a deal with the RCMP to open a blockade preventing Coastal GasLink pipeline employees to do survey work in their territory, but they haven’t dropped their outright opposition to the project. And their dispute over whether the elected Wet’suwet’en band council had the authority to sign an impact and benefits agreement on behalf of all the First Nations people remains an open question that highlights the complexity of Indigenous law.

Coastal GasLink’s efforts to secure agreements with all 20 elected Indigenous governments along its entire 670-kilometre right of way were heralded by Premier John Horgan as an example of getting it right when it comes to First Nations consultation. The pipeline’s path starts near Dawson Creek in B.C.’s northeast and runs to tidewater at Kitimat, terminus for the $40-billion LNG Canada development it is intended to serve.

The Wet’suwet’en opposition, however, illustrates how in many cases in British Columbia, the relations between First Nations band councils, which are creations of the federal Indian Act, and the pre-existing and historic hereditary systems of governance are still being sorted out, said an Indigenous legal scholar, Val Napoleon. The difference, Napoleon said, is that hereditary systems are the larger, historic legal, social and economic orders that First Nations lived by that covered the entire territory of specific groups. Elected band councils have authority delegated by the federal government over activities on specific reserves.

Historically, most Indigenous people were “non-states,” Napoleon said, meaning that their authority was distributed among family, house or clan-based groups that are determined matrilineally. Hereditary chiefs come from specific families, but don’t directly inherit positions, Napoleon said. They earn their positions, and authority, through their ability to uphold the integrity of their land and their rules for social order.

In the case of the Wet’suwet’en, its hereditary system consists of 12 houses that are organized in five different clans governing different parts of the total historic Wet’suwet’en territory. “What we have here is a dispute over the extent of authority of a band council to make decisions beyond reserve boundaries,” Napoleon said. “And people are arguing that (the elected councillors) don’t have that authority under Wet’suwet’en law.” “That’s the other important issue here,” Napoleon said. “Indigenous law hasn’t gone away, but it has been undermined and there are gaps in what we’ve been doing and others are doing to rebuild it.”

Napoleon noted that it was Gitxsan and Wet’suwet’en hereditary chiefs who brought the landmark Delgamuukw case forward to the Supreme Court of Canada, which resulted in a decision that established that First Nations still have Aboriginal title to their historic territories. That principle and the roles of hereditary governance were further upheld in the Supreme Court of Canada’s 2014 Tsilhqot’in decision.
“Part of the problem here is that Wet’suwet’en law is still invisible to many,” Napoleon said. “So they can’t figure out what the proper relationship is between these laws and Canadian law and they can’t figure out what’s a legitimate process to deal with these disputes.”

In theory, “there is a very credible argument” that the Wet’suwet’en hereditary system is still the “customary government” with authority over matters in their larger, off-reserve territory, said B.C. lawyer Jack Woodward, who specializes in Indigenous law. Woodward said he isn’t familiar with the Wet-suwet’en situation, so he was speaking in abstract terms. The Tsilhqot’in decision established that First Nations reserves are small entities within larger Aboriginal territories, Woodward said, and that the reserves’ band councils, designated under the Indian Act, have jurisdiction over activities on reserve. However, “it is unclear who has jurisdiction over areas of Aboriginal title or unproven Aboriginal title,” Woodward said.

Matters are complicated further, Napoleon said, by the fact that elected band chiefs and councillors also belong to family houses and have their places in the hereditary system, often as hereditary chiefs. So depending on the First Nation, it isn’t always as clearcut as either being part of the hereditary system or the elected council. “You also have to be specific about the types of agreements (companies) have and the extent to which those agreements authorize band councils to act on behalf of people on lands that aren’t reserve lands,” Napoleon said.

Woodward has advice to the proponents of resource projects about how to approach Indigenous communities around consultation. “To be safe, if you’re a company, you would try to get an undertaking with (both elected and hereditary systems),” Woodward said. “You would need a bit of anthropological or ethnographic intelligence on the ground to figure out who the hereditary chiefs are, and make sure you’ve got them all on board.”

 

[Edward Campbell]

Am I the only one who finds something vaguely familiar in the legal system the Professor Napoleon describes? Does it not seem to anyone else that it is grounded in Lewis Carol?

Some will be guessing that when this gets to the Supremes they will agree with Professor Napoleon that law is whatever is most convenient for First Nations ... and that business decisions will be made accordingly.

 

[YZT580]

Trying to placate the locals is like playing whack-a-mole.  Solve one and another pops up.  It is time for one law for all Canadians including the tribes otherwise you will never achieve anything.  I have been involved in consensus building for 10 years and I can guarantee it doesn't work.  There is always one...  Yesterday there was a report that another group has taken the feds. to court over Salmon farming.  They are trying to get it shut down in the Queen Charlotte's.  They have laid claim to the land on either side of the strait and now they are claiming jurisdiction over the waterways as well.  Here is the catch!  There are only a few hundred all told.  So a few hundred can put a thriving Canadian business out of business simply because they don't like their methods.  There is something wrong with this picture.  It is time to end the farce that native Canadians have made of our business practices, our laws and find a politician that is willing to say that enough is enough.  I agree that they have been treated abominably in the past for reasons that probably made sense to the folks at that time but that doesn't mean that we have to continue paying for the sins of our ancestors.

 

[Kat Stevens]

So, the BC gov sticks it's nose into pipeline business and finds itself being obstructed by people along the proposed pipe route?  Irony, far out.

 

[Journeyman]

Am I the only one who finds something vaguely familiar in the legal system the Professor Napoleon describes?

Damn, I was hoping that "Professor Napoleon" was a blog offering lessons from the Napoleonic wars;  I even pictured a signature block of 'Never trust those #&*&@  Prussians!'    ;D

/tangent

 

[Colin Parkinson]

One thing I have seen is a difficulty for some FN's to distinguish between their roles as a local government and that of being a business entity. The more able FN have developed separate groups that look after the 2 sides and aren't always on the same page. I have had a FN group ask me to block a logging related application, because they didn't get the contract. Thankfully I see less of that sort of stuff now. 

 

[Kirkhill]

Surf's up today. 

Paddling out - Who's in charge?

Indian Act to blame for pipeline gridlock in northern B.C.: federal minister
Carolyn Bennett

Amy Smart, The Canadian Press

Published Friday, January 25, 2019 4:32AM EST

VANCOUVER -- Canada's minister of Crown-Indigenous relations is pointing her finger at the Indian Act for creating a gridlock in northern British Columbia where some hereditary clan chiefs say a liquefied natural gas pipeline doesn't have their consent.

Carolyn Bennett would not say whether she believes the hereditary chiefs of the Wet'suwet'en First Nation have jurisdiction over the 22,000 square kilometres they claim as their traditional territory, saying that it is up to each community to determine its leadership structure.

But she says the situation is an example of why the federal government is working to increase First Nations capacity for self-governance, including a new funding program to rebuild hereditary structures.

https://www.ctvnews.ca/canada/indian-act-to-blame-for-pipeline-gridlock-in-northern-b-c-federal-minister-1.4268629

I don't often agree with Dr. Bennett but she's not wrong here.

So, who is in charge?  What is BC's role in all of this?  Surfing onwards to David Huer, 2015

The bits in red are actually BC.  The other bits are not.

https://davehuer.com/blog/a-new-map-of-the-coast/

Arguably THIS is BC.

Which Huer suggests could be its own Megacity Province as it has little in common with the rest of the Province.  It is a seaport (Edit - sister city to Hong Kong, Singapore and Calcutta).

As to the other bits.

The bit in the NE corner was actually incorporated into Canada by the 1899 Treaty 8 between Her Majesty's Government in Ottawa, under London supervision, and "Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY SHARE*, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits,"

So the NE quadrant was only hived off from the federal lands of the Northwest Territories and gifted to the administration of BC post confederation (1871), circa 1905-1911.  Arguably the quadrant would be better served as part of Alberta, or the Yukon current Northwest Territories.  It would certainly work to maintaining the integrity of the original Treaty 8 lands. (Settler geography or Treaty geography suggests another surfing expedition but not today).

It all makes for an interesting discussion with the prospect of a separate central sovereign parliament available for resolution of both internal and external disputes, a parliament with whom Ottawa, other provinces and companies could deal with surety.

But then I remember the Mother of Parliaments and Brexit....

On the other hand, there have been longer, more rancorous debates that have eventually found resolution - with minimal bloodshed.

 

[Kirkhill]

Just for reference

Would we have been better off adapting settlers to native boundaries or with the current system of adapting natives to settler boundaries?

 

[Fishbone Jones]

Can the government not just expropriate what we need or use the notwithstanding clause? No group should be able to stop Canadian progress, good for the whole country, by saying "Nope, my land. Stay out".

The government also needs to stop infiltration, funding and protests from US paid counter interests, like the Rockefellers, Tides Foundation and others, who are actively thwarting Canadian businesses through corporate espionage and funding the protests.

 

[Kirkhill]

Can the government not just expropriate what we need or use the notwithstanding clause? No group should be able to stop Canadian progress, good for the whole country, by saying "Nope, my land. Stay out".

The government also needs to stop infiltration, funding and protests from US paid counter interests, like the Rockefellers, Tides Foundation and others, who are actively thwarting Canadian businesses through corporate espionage and funding the protests.

My understanding is that Her Majesty's Government in Canada can expropriate lands, with due compensation in Treaty lands.  But that is the problem.  Most of BC is not covered by any Treaty, federal or provincial (and neither, it seems, is Quebec).

 

[Kat Stevens]

If treaty, or non-treaty, lands are expropriated for BCs LNG pipeline, I would fully expect the same to happen for Trans Mountain and Energy East.  If we're going to fuck off aboriginal peoples, we better get cracking on fucking off Gallic ones too.

 

[AbdullahD]

My understanding is that Her Majesty's Government in Canada can expropriate lands, with due compensation in Treaty lands.  But that is the problem.  Most of BC is not covered by any Treaty, federal or provincial (and neither, it seems, is Quebec).

This is what so many people miss.

I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.

Abdullah

 

[Fishbone Jones]

This is what so many people miss.

I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.

Abdullah

I don't profess to know 100%. I haven't checked, but I've read many bands along the line are prosperous and good corporate partners.

I've also read, many of the bands in opposition are making millions from the groups I mentioned above.

In my mind, it might be time to revisit these treaties and land issues. Perhaps end the Reserve system also. It doesn't work, period.

Work land trades and payouts. No reserves, no status. We are all Canadians. If you want to live on welfare, do it like everyone else. No more millionaire chiefs. The biggest obstacle is emotion. Get rid of that, people will talk.

 

[AbdullahD]

Work land trades and payouts. No reserves, no status. We are all Canadians. If you want to live on welfare, do it like everyone else. No more millionaire chiefs. The biggest obstacle is emotion. Get rid of that, people will talk.

Preaching to the choir mate, but removing emotion seems damn near impossible.

 

[Colin Parkinson]

This is what so many people miss.

I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.

Abdullah

Nice area, a big part of this is that there is a pissing match within the bands as to who gets to lead, these bands are often very small and lot of personal strife. But once bands take on the role of government, they quickly realize that running government is not fun without money. Hence the Nisga approving the PRGTS to cut through the memorial lava beds.

 

[Kirkhill]

Interesting passage from Treaty 8 (which governs the NE Quadrant of BC - including the Site C Dam - and Northern Alberta)

And Her Majesty the Queen HEREBY AGREES with the said Indians that they shall
have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract
surrendered as heretofore described, subject to such regulations as may from time to time be
made by the Government of the country, acting under the authority of Her Majesty, and saving
and excepting such tracts as may be required or taken up from time to time for settlement,
mining, lumbering, trading or other purposes.


And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for such
bands as desire reserves, the same not to exceed in all one square mile for each family of five for
such number of families as may elect to reside on reserves, or in that proportion for larger or
smaller families; and for such families or individual Indians m may prefer to live apart from band
reserves, Her Majesty undertakes to provide land in severalty to the extent of 160 acres to each
Indian, the land to be conveyed with a proviso as to non-alienation without the consent of the
Governor General in Council of Canada, the selection of such reserves, and lands in severalty, to
be made in the manner following, namely, the Superintendent General of Indian Affairs shall
depute and send a suitable person to determine and set apart such re-serves and lands, after
consulting with the Indians concerned as to the locality which may be found suitable and open
for selection

http://treaty8.bc.ca/wp-content/uploads/2015/07/Treaty-No-8-Easy-Read-Version.pdf

My take on that is that in 1899, the date of signing, the natives had the opportunity to band together on reserves or to individually accept land grants of 160 acres exactly as the settlers were receiving.

It doesn't sound like anybody was forcing anybody to do anything.  They could settle separately or band together under a government of their own choosing (Chiefs and Headmen) on lands selected with their input.

 

[Rifleman62]

http://www.mondaq.com/article.asp?articleid=775944&email_access=on

Article by Craig O Alcock and Paul A. Beke - Burnet, Duckworth & Palmer LLP

Alberta Appeal Judge Finds That Unfounded Fears, However Genuine, Do Not Qualify As Harm To Aboriginal Rights - 29 Jan 19

On January 16, 2019, Alberta Court of Appeal Justice Ritu Khullar issued a decision in Fort McKay Métis Community Association v Alberta Energy Regulator.

The Alberta Energy Regulator (AER) had approved Prosper Petroleum Ltd.'s oil sands project after hearing evidence from the Fort McKay Métis Community Association. The Fort McKay Métis requested permission from the Court to appeal the decision, which could only be granted if the AER had made an error of law or jurisdiction. The Court denied leave to appeal as, among other things, unjustified fears of contaminated fishing grounds were insufficient to show actual harm to aboriginal rights.

The decision illustrates that no actual harm to aboriginal rights arises from unfounded contamination fears or other subjective perceptions.

Summary of the Alberta Energy Regulator's Decision

Prosper applied to the AER for various approvals for an oil sands project that would operate within 10 km of the Fort McKay First Nation's Moose Lake Reserves. The Fort McKay Métis claimed unextinguished, constitutionally protected Métis aboriginal rights to hunt, trap, and fish on their traditional territory on or near the reserves. In its hearing, the AER considered the Fort McKay Métis to be a rights-bearing community, and weighed the oral traditional knowledge that the Fort McKay Métis presented as evidence.

The Fort McKay Métis' genuine fear of eating the fish was unjustified

The AER accepted evidence from the Fort McKay Métis that some members would be genuinely afraid to eat fish from Moose Lake due to fear of contamination. The AER (1) determined that the project would neither harm the fishery, nor reduce the animals available for hunting and trapping, but (2) recognized a risk of a "negative social effect", in that, members might change how they value the lands and the animal resources. When weighing the public interest, the AER accounted for these fears and perceptions, but ultimately decided that the Fort McKay Métis would continue to be able to exercise their aboriginal rights in their traditional territory.

The AER concluded that the project was in the public interest

The AER granted conditional approvals under the Oil Sand Conservation Act, the Environmental Protection and Enhancement Act, and the Water Act, which were dependent on approval by Cabinet. Other conditions required that Prosper seek input (1) from the Fort McKay Métis on reclamation, and (2) from the Fort McKay Métis and the Fort McKay First Nation before further developing the surface-water-monitoring program.

Summary of the Court of Appeal's Decision

The Fort McKay Métis presented a number of grounds for leave to appeal. On one, the Court decided that AER's overall weighing of the public interest was not a matter of pure law (as opposed to mixed fact and law). Thus, no appeal was available on that ground.

On another ground, the Court determined that the Fort McKay Métis had no basis to argue that they shouldn't bear the burden of proving harm to their rights.

Fear of harm is not actual harm

The most fundamental ground of appeal claimed by the Fort McKay Métis was that the project would harm their Métis aboriginal rights under section 35 of the Constitution Act, 1982.

They argued that:

- the project would cause them to perceive their traditional lands differently;
- which would, in turn, cause them to avoid Moose Lake and reduce their fishing; and
- reduced use of their fishery would objectively harm their fishing rights.

The Court reasoned that unlike any objectively proven harms to wildlife and water, merely subjective fears or perceptions do not qualify as actual impacts on Métis aboriginal rights. Unfounded fear does not negatively impact aboriginal rights.

The Right Holder Must Prove Actual Harm to its Rights

In hearings over aboriginal rights, the common law has had to grow to include evidence such as oral traditional knowledge. But when proving harm to aboriginal rights, the approach is standard. The relevant issue is whether a development project will actually harm aboriginal rights—not whether purely subjective fears and perceptions will hamper the exercise of aboriginal rights.

The full decision can be found here: https://www.canlii.org/en/ab/abca/doc/2019/2019abca15/2019abca15.pdf

 

[Colin Parkinson]

We try to accommodate for perception and concerns within the environment assessment process. I have also placed regulatory conditions onto proponent to require them to post notices, conduct public meetings and provide ongoing updates to alleviate some of those perceptions.