A report in the National Observer is raising some pointed questions about how TransCanada Corporation and the province of British Columbia secured the consent it claims to have from several First Nations groups for a planned 900-kilometre liquefied natural gas pipeline from the province’s northeast to an export terminal on Lelu Island, near Prince Rupert.
The route would cross territories belonging to 10 of the Gitxsan Nation’s 100 “wilps”, or house groups. Each is represented by a hereditary chief who acts “as the voice of their people in addressing cultural, environmental, and economic issues that impact their territory,” reports Trevor Jang of Vancouver’s Discourse Media.
Nine of the 10 “accepted money in exchange for their support of [the] controversial liquid natural gas (LNG) pipeline without consulting all of their nations’ members,” Jang writes. “Some Gitxsan people say that decision broke ‘ayook’ traditional Gitxsan law.” Critics say that action could erode the precedent set in 1997 by the Delgamuukw decision in Canada’s Supreme Court, which confirmed the existence of constitutionally-protected Aboriginal territorial title in a case brought by the Gitxsan.
The region continues to feature prominently in the evolving jurisprudence on the rights of Indigenous groups. What constitutes “meaningful consultation” on development in traditional territories is a frequent flashpoint. Thirteen months ago, the B.C. Supreme Court ruled in favour of an applications by the Gitga’at and other First Nations challenging the extent of consultation in the case of Enbridge Inc.’s now-abandoned Northern Gateway pipeline proposal. The Supreme Court of Canada is currently weighing decisions on two more cases it heard in November, including another involving Enbridge.
Documents leaked last fall on Facebook revealed that several hereditary chiefs who gave their consent to TransCanada’s planned B.C. pipeline on behalf of their wilps appear to have received millions of dollars in payments from the provincial government.
One document, described as the “Trustee Resolution of the Amdimxxw Trust” and dated September 6, 2016, “lists the chief names next to dollar amounts, dividing a total of more than $5.3 million between them,” Jang writes. After the list appeared, nine of the 10 chiefs confirmed they had consented to the project. “It’s bribery, more or less,” one of the chiefs, Earl Muldon, conceded of the payments.
The report doesn’t suggest that any of chiefs benefited personally from the money. Muldon, for one, “doesn’t consider the money his to spend,” Jang reports. “He says he will discuss with his wilp members how the money could best serve the community. Until then, it will remain in the Amdimxxw Trust.”
More troublesome than the money to some Gitxsan members is the chiefs’ claim to have authority to give their wilps’ consent to the pipeline.
“According to Neil John Sterritt, a Gitxsan member and a consultant who assists First Nations with Aboriginal rights and title research and asserting self-governance, the chiefs did not follow ‘ayook’,” traditional Gitxsan law, Jang writes. That law requires that all the Gitxsan members be “involved in any decision that binds the nation, which this does.”
Instead, Sterritt told Jang, the chief’s consent “was done secretly. It was done so people like me would not know. Not just me, but a lot of people who were opposed to the way things operate.”
Gordon Sebastian, one of the chiefs who signed the Trust document, contests that reading. Also executive director of the Gitxsan Treaty Society (GTS), which works to develop the nation’s governance capacity, “Sebastian says the chiefs went through an extensive four-year process before coming to a decision,” Jang writes. “This involved over 45 meetings with PRGT, the provincial government, industry experts, and those who are opposed to the project.”
“We evaluated everything. The environment. The birds. The animals. All that stuff,” Sebastian insisted to Jang. “I took it all into consideration. Me as well as the other 10 chiefs. Nine out of 10. We did all that and we did it jointly. Consultation has happened. We did it from the point of view of our ayook. And we felt we did a very good job.”