We need all hands on deck to support the Wet’suwet’en, who are  defending their unceded territory (Yintah) from Coastal GasLink’s (CGL) liquefied natural gas (LNG) pipeline. The Dinï ze’ and Ts’akë ze’ (Chiefs) wholeheartedly oppose the CGL project, which would turn pristine forests and salmon streams into a fossil fuel corridor. 

Coastal GasLink is proposing a 670-km pipeline carrying fracked gas from Dawson Creek to a proposed LNG facility in Kitimat. The pipeline is owned by  TransCanada, the same corporation funding the Keystone XL and Energy East Pipeline projects.

Coastal GasLink (CGL) is part of a recently-approved $40 billion LNG Canada project which is the single largest private sector investment in Canadian history. The Malaysian company Petronas, which abandoned its own Pacific NorthWest LNG project when faced with First Nations opposition, has a 25% stake in LNG Canada.

If CGL were to be built and become operational, it would irreversibly transform the ecology and character of northern B.C. It would also lock in decades of fossil fuel extraction at a time when scientists are warning of untold suffering unless all nations rapidly scale down production of fossil fuels.

According to the Pembina Institute, LNG Canada’s carbon footprint would be 8.6 million tonnes (Mt) by 2030, making it impossible to achieve even the targets mandated B.C.’’s recently-weakened climate legislation. Another concern is the process of hydraulic fracturing (fracking) used to obtain the gas, which pollutes groundwater and causes large amounts of methane to escape into the atmosphere, which has a serious impact on our climate and public health. The pipeline will cross hundreds of salmon-bearing streams, terminating in an LNG liquefaction and export facility in the Skeena River estuary.

In the spring of 2019, RAVEN was approached by Wet’suwet’en Hereditary Chiefs associated with the Unist’ot’en camp. The Chiefs were in court opposing an injunction granted to Coastal GasLink that excluded Wet’suwet’en members from portions of their own territory. RAVEN ran a fundraising campaign for Unist’ot’en in May-June 2019, raising $90,000. Unfortunately, Unist’ot’en lost in court. 

In the fall of 2019, RAVEN was approached by the Office of the Wet’suwet’en, a body that coordinates the work of all Hereditary Chiefs, requesting support for their Judicial Review Application. As well, two Chiefs of the Likhts’amisyu clan requested support for their Constitutional/Charter challenge. RAVEN accepted both applications and has entered into a formal agreement with Wet’suwet’en Hereditary Chiefs, which is the foundation for our Wet’suwet’en campaign.

If the Wet’suwet’en win the Judicial Review, the Coastal Gas Link approval would be quashed (cancelled).

If the Wet’suwet’en win the Constitutional and Charter challenge, it may lead to far-reaching changes to Canada’s environmental legislation. These would enable the federal government to cancel previously given approvals to fossil fuel projects such as the LNG export facilities and pipelines proposed for Wet’suwet’en Territories. The cancellations would kick in when it can be proven that, should projects proceed, Canada will fail to meet its Paris obligations to keep the country’s greenhouse gas emissions to less than 2 ̊C above pre-industrial levels.

The Wet’suwet’en governance system, dating back for thousands of years, is based on Houses and Clans. The Feast is central to Wet’suwet’en government, law, social structure and world view. Dinï ze’ and Ts’akë ze (Hereditary Head Chiefs and Wing Chiefs of each House) draw their legitimacy neither through elections, nor through birthright alone (as in European monarchies) but through the Feast House process. The feast validates the chiefs’ authority and legitimacy according to Wet’suwet’en law. Before any feast, there are many informal and semi-formal meetings at which ideas are introduced, discussed and a consensus built within the host House and among the other Wet’suwet’en Houses. The English term “hereditary leadership” doesn’t really convey the complexity of this highly participatory governance system.

Canadian law recognizes Indigenous governance in general and the Wet’suwet’en House and Clan system in particular. This was very clearly stated by the Supreme Court of Canada in its 1997 Delgamuukw decision. The Supreme Court of Canada described the system of Clans and Houses with Hereditary Chiefs as “the fundamental premise of both the Gitksan and the Wet’suwet’en peoples.”

Subsequently, the BC Supreme Court held in Canadian Forest Products Inc v Sam that “the Wet’suwet’en occupation and use of land is organized by the clan and house system upon which the law and essential social structure is ultimately based.” The BC Supreme Court went on to say that “each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief is given a duty to protect. The rights and responsibilities are confirmed, coordinated, and directed to the common good, in other words, governed, through the feast,” which is “central to Wet’suwet’en society and government”.

The two legal challenges RAVEN is currently supporting were brought by Wet’suwet’en Hereditary Chiefs representing all Wet’suwet’en Clans.

The Hereditary Chiefs, not the band councils, were the plaintiffs in the landmark Delgamuukw 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 Supreme Court further clarified in the Tsilhqot’in decision that the organization of a Nation into bands as a result of the reserve allocation process and the Indian Act “does not affect the identity of the Nation as the holder of rights.”

According to legal scholar Bruce McIvor, unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves.
By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.”

The Wet’suwet’en are appealing: the Likhts’amisyu clan filed its Notice of Appeal in December 2020. The hearing will most likely be held in the fall of 2021.

The Likhts’amisyu original claim advanced a constitutional argument based on the power of Parliament to pass laws only for the “peace, order and good government” of the country. By failing to keep greenhouse gas emissions below catastrophic levels, the Likhts’amisyu argued, Canada has exceeded this power. As well, allowing such high emissions violated the Likhts’amisyu rights to life, liberty and security of person, and the equality rights of younger members and future generations under the Charter of Rights and Freedoms: they would be disproportionately affected compared to older generations and other Canadians. The claim described Canada’s 30-year record of insufficient action and the systemic inability of the political process, on its own, to address the delayed, irreversible, existential threat of global warming.

Motion to strike. In response to Canada’s Motion to Strike, the Federal Court dismissed the Likhts’amisyu constitutional claim as “nonjusticiable,” meaning not appropriate for a court to decide, based on the constitutional division of powers among the three branches of government. In the court’s view, greenhouse gas emissions are a policy matter properly left to the executive and legislative branches, rather than the judiciary. As for the “peace, order and good government” provision of Section 91 of the Constitution, in the court’s view that is merely a rote formula that gives Parliament the power to pass legislation; it does not impose a positive duty or contain any limits or restrictions.

The Likhts’amisyu appeal. The key issue here is what “peace, order and good government” actually means. Is this just a phrase inherited from British colonial proclamations - essentially an incantation that merely confers blanket powers on Parliament - or do the words “peace”, “order” and “good government” each have their own legal weight and meaning? If Parliament fails to act for peace, order and good government, can it be restrained by the courts? This is the issue that the Likhts’amisyu take on squarely in their appeal. They argue that the federal Crown’s broad legislative powers are not so wide as to permit Canada to contribute to an existential and catastrophic harm such as the climate crisis.

A new decision from the Supreme Court may influence the Likhts’amisyu appeal

The court struck the Likhts’amisyu claim in November 2020. On March 25, 2021, the Supreme Court of Canada handed down a decision on the federal ability to put a price on greenhouse gas emissions,  the References re Greenhouse Gas Pollution Pricing Act (2021 SCC 11). That’s an interesting decision in several ways. This is the first time the Supreme Court has recognized that climate change is a “threat of the highest order to the country and (...) to the future of humanity,” which disproportionately threatens the “ability of Indigenous communities to sustain themselves and maintain their traditional mode of life.” 

In what reads like Climate Science 101 the Supreme Court goes on to summarize key scientific findings to identify major harms that global warming would bring to Canadians, especially Indigenous Canadians, as well as those living on the coasts and in the Arctic. It also affirms that climate change is a matter of “genuine national concern”. This bolsters the Likhts’amisyu argument that global warming, if allowed to continue, is an existential and catastrophic trend. 

Now that the Supreme Court has spoken, the Likhts’amisyu (and plaintiffs in other climate lawsuits) will no longer have to prove the same facts over and over again.

All the funds raised for Wet’suwet’en campaign go to Indigenous litigation. 85% of the funds raised go to Wet’suwet’en to fund their legal challenge. RAVEN used to levy 15% as administrative costs to sustain our operations. However, as of 2021, the 15% levy is placed into our Discretionary Litigation Fund (see below). 

If a legal challenge is terminated, and the money raised exceeds the litigation expenses, we place the remaining funds into the Discretionary Litigation Fund. We use the money in the Discretionary Litigation Fund to add funds to any of our litigation campaigns that need extra funds for any reason (e.g. to respond to a Crown motion, or to commission additional expert reports).