The following is a two-part opinion piece available in full at interior-news.com. The second part will be published Jan. 30.
For those who watch these things closely, the sudden arrival of a previously innocuous gas pipeline into media prominence wasn’t that big a surprise. Although it’s true that nobody expected to see protesters as far away as Italy in high dudgeon about the project, all the signs of incipient outrage were there. Ever since Coastal GasLink received its approval in 2014, a variety of well-organized groups had been circling the project.
Once the LNG Canada project the pipeline is designed to support received its green light in October 2018, the time had come for the pipeline to be built.
That’s when the fun started, focused on a very specific point on the map.
The protest action camp (or, if you prefer, healing centre) located south of the town of Houston actually predates Coastal GasLink by years, since it was first established to oppose the Northern Gateway Pipeline before the Trudeau government caved and scuttled that project altogether. No doubt emboldened by this success, the loose coalition of American funders and local organizers behind the camp apparently decided to just keep it going. Located on the eastern slope of the Coast Mountain Range, the Unist’ot’en camp was smack dab in the middle of the only practical route to Kitimat – indeed, on the exact GPS coordinates of the pipeline. The nearby Gitdumt’en checkpoint came later.
From the beginning, it was clear that any project in that corridor would need to face down the protesters at some point.
Once an injunction was granted in December to allow pipeline workers to get past the blockade, it was inevitable that the simmering crisis was headed for the headlines.
The set piece that unfolded last week had all the necessary elements of a textbook confrontation, starting with the most important element of all: media. A hierarchy of communicators was on hand to record events. On the lowest rung, “citizen journalists” claiming to represent various organizations holding their prosumer gear aloft like they’ve seen in the movies, ready to feed the dark green web. Next up, embedded pro-blockade journalists in some cases appearing to also represent major news organizations, trickling in to file stories in requisite I’m-here-at-the-storming-of-the-Bastille tone. Soon, the real journalists showed up bringing a more credible approach to information gathering, by which time the carefully concocted stunt was dialed up to Cultural Event: Defcon 1.
For years, the federal government had believed that the Unist’ot’en blockade camp represented “the ideological and physical focal point of Aboriginal resistance to resource extraction projects.” The product of the showdown, if the anti-pipeline protesters got their way, would include a rich harvest of imagery in which menacing police in heavy gear dragged wailing individuals wearing traditional First Nations regalia off to waiting vans.
Long before last week, it must have been obvious to RCMP commanders that the international protest movement would be bringing their A-game to the inevitable injunction confrontation, with a ubiquitous camera presence poised to capture the slightest enforcement slip-up that could fuel a tornado of digital fury.
The RCMP shrewdly put into a place a command centre and the support systems necessary for a successful enforcement operation tailored for the media age. The precautions taken resulted in only a few members donning the kind of tactical gear that plays into sinister readings of their intent. This wasn’t surprising given that blockade occupiers have occasionally appeared in social media brandishing weapons. (Whether they did so for hunting or other reasons would have been, from a public safety point of view, beside the point) Most of the Mounties were in more approachable, non-threatening garb. As with the recent removal of “Camp Cloud” on Burnaby Mountain, a safety perimeter was put into place that allowed RCMP to manage the situation to their liking. This included holding back out of view the journalists whose whole purpose for holding vigil in severe winter conditions was to be ready to record the planned arrest imagery.
For protest organizers, the thesis behind the Unist’ot’en action was one nurtured over many years. It was that the legitimate grievances of a small number of indigenous individuals provided the grain of sand that would, once properly seeded, produce a perfect pearl for the media age, drawing followers to a moral crusade drawn in stark black and white as sinister authorities came down hard on authentic indigenous people in full regalia.
For those familiar with the incredibly complex tapestry of law, tradition, and government of the North West the whole thing was, of course, a glaringly transparent sham. This statement must be followed with recognition that the purity of First Nations motives to protect the land cannot be questioned. Indigenous law dictates that the role of land steward be taken with the utmost seriousness. The disputed natural gas pipeline had long been strongly supported by local indigenous leaders from the Wet’suwet’en First Nation whose claim to land stewardship credibility was unimpeachable.
After the 675-km line got its environmental assessment certificate in October 2014, announcements were soon being made about signed agreements between builder TransCanada and local First Nations regarding benefits related to the project. These included commitments of financial benefits, skills training, employment opportunities, and use of Aboriginal businesses in constructing the project. For years to come, these agreements would grow in number and soon reach 20, at which point the project was able to state that every First Nation along the line was supportive. Consultation? The pipeline company pointed to some 15,000 meetings.
Nevertheless, the distinction between hereditary and elected decision makers, what some might term church and state, was already familiar to many from the Delgamuukw case involving 12 Wet’suwet’en clan houses.
To legal professionals involved in British Columbia disputes of this kind, the hereditary vs elected dynamic is a familiar one. It comes down to the fundamental question of who is the proper rights holder – or, who in band leadership has the authority to speak for members. It bears mentioning that the Unist’ot’en protesters were always there to say no, and not to negotiate, having consistently refused to meet with the proponent for talks. That’s a risky approach for the protesters, who risk the wrath of the court should they enter litigation and are exposed as having failed to make reasonable efforts to engage.
In the case of the Coastal GasLink dispute, it’s clear that legal standards have been met. Governments have passed all the authorizations and done the necessary work. There is a lot of speculation that the pipeline will now become tied up in the courts over indigenous questions. That’s always a possibility, but the truth is that nobody wants to go to costly litigation of this type because the outcome is so uncertain. There is a lot at risk. Right now some hereditary title claims are being made over a very large geographic area. The likelihood is that a lengthy court process would result in the level of title being reduced to a certain, but smaller, area. Gone would be the nebulous uncertainty of the current situation that allows for many concessions to be demanded, and granted.
Armchair lawyers abound on social media, and they most often misunderstand the Delgamuukw and Tsilhqot’in cases. In the Delgamuukw case in 1997, the Supreme Court of Canada clarified issues relating to aboriginal title, but did not outright resolve them. The court said there would have to be another trial to resolve them, but there has not been any such trial yet. In the Tsilhqot’in decision in 2014, the Supreme Court ruled that the Tsilhqot’in Nation had proved its Aboriginal title. It ruled that those lands can be managed according to Tsilhqot’in laws and governance. But the court’s decision applies only to the Tsilhqot’in Nation and its territory. It will take a court, not a social-media campaign by interest groups, to decide if and how it would apply elsewhere.
To say that hereditary chiefs are responsible for the land and that elected councils are responsible for programs and services on the reserve may reflect how a particular community operates but otherwise is an oversimplification.
Stewart Muir is the executive director of the Resource Works Society.