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“Coastal GasLink has repeatedly flouted the conditions that were spelled out in their previous certificate, and shown only contempt for our people. My cousins are listed among the Murdered and Missing Women and Girls (MMIWG), BC must not be allowed to bend the rules to facilitate operations that are a threat to the safety of Wet’suwet’en women.”
The Wet’suwet’en launched two separate legal actions in February 2020.
Legal action No. 1, The first case — launched by all clans of the Wet’suwet’en, acting in unity — seeks a judicial review of Coastal Gas Link’s environmental assessment based on at least 50 permit violations by the company, along with a failure to implement recommendations of the National Inquiry into Missing and Murdered Aboriginal Women and Girls. This is based on the Inquiry’s final report of June 2019 which found that resource extraction is linked to spikes in violence against Indigenous women, girls and two-spirit people, and called on governments to conduct a gender-based harms analysis prior to approving projects.
Legal action No. 2 is a Constitutional challenge asking the Federal Court to declare that Canada has a constitutional duty to keep the country’s greenhouse gas emissions well within the Paris Agreement limit of 2 ̊C above pre-industrial levels. If successful, the lawsuit could lead to far-reaching changes to Canada’s environmental legislation. It would enable the federal cabinet to cancel approvals previously given to fossil fuel projects such as the LNG export facilities and pipelines proposed for Wet’suwet’en Territories and the northwest B.C. region. The cancellations would kick in if it becomes clear that Canada will fail to meet its Paris global warming commitment. The legal challenge argues that Canada’s failure to do its fair share to avert a climate catastrophe would breach the equal protection of the law guaranteed by the Canadian Charter of Rights and Freedoms.
Wet’suwet’en Houses, through their Hereditary Chiefs, have launched two legal challenges over Canada’s approval of multiple fossil fuel projects in their territory. These challenges are strategically designed to address both the immediate issue of the Coastal Gas Link LNG pipeline being built without Wet’suwet’en consent, as well as Canada’s ongoing failure to address the climate emergency.
Legal challenge No. 1, supported by all the Hereditary Chiefs acting in unity, seeks a Judicial Review of a project extension for Coastal Gas Link’s pipeline, granted by the BC Environmental Assessment Office in October 2019 for another 5 years. The action argues that the B.C. Environmental Assessment Office had a duty to assess new evidence of the project’s harms, which in this case means the recent findings of the Inquiry on Missing and Murdered Indigenous Women and Girls, which found direct links between extractive industries, “man camps” and increased violence against Indigenous women. The BCEAO was also required to take into account Coastal Gas Link’s record of non-compliance (over 50 instances!).
Legal challenge No. 2, a Constitutional and Charter of Rights challenge brought by two Houses of the Likhts’amisyu (Fireweed Clan) through their House Chiefs, is an ambitious, long-term legal challenge seeking a comprehensive overhaul of Canada’s environmental legislation to enable urgent action on climate change.
This visionary, sweeping action puts forward the argument that Canada has a constitutional duty to protect its citizens from climate catastrophe, and draws a line against reckless fossil fuel developments that will push us past the tipping point. The action invokes Constitutional provisions about “peace, order and good government” as well as the equality rights of Wet’suwet’en young people and future generations under the Canadian Charter of Rights and Freedoms.
The case specifically names Coastal Gas Link and Pacific Trails fracked gas pipelines along with LNG export facilities in Kitimat as particularly high-emitting fossil fuel projects that are likely to breach Canada’s (already inadequate) emissions targets. In the name of future generations, the legal challenge argues that Canada’s failure to do its fair share to avert a climate catastrophe would breach the equal protection of the law guaranteed by the Canadian Charter of Rights and Freedoms.
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 Gas Link 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 Revew 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 Chiefs will need roughly $135K-150K for the Judicial Review Application. The Constitutional and Charter challenge is a long-term strategy that will require at least $150K this year. The amount needed depends on many variables: the position taken by the defendants (Canada and/or B.C.) on which parts of the Wet’suwet’en case they will contest; any pretrial motions brought by the defendants, potentially leading to delays and additional legal work; whether third parties (another Nation, for example, or an oil and gas interest) seeks to “intervene”, i.e. file a third-party submission to the Court on the facts of the case; the cost of any expert reports commissioned by the Wet’suwet’en; the length and scheduling of hearings, etc.
The money will be used to research and develop legal arguments; develop strong evidence through expert studies, expert witness testimony, depositions and testimony from elders and cultural knowledge holders; respond to any pre-trial motions by Canada and B.C.; address submissions by intervenors; and present the case in court.
The Dinï ze’ and Ts’akë ze’ (Chiefs) wholeheartedly oppose the CGL project, which aims to blaze a trail through Wet’suwet’en territory and turn pristine forests and salmon streams into a fossil fuel corridor. Coastal GasLink has already bulldozed through Wet’suwet’en territories, destroying archaeological sites and occupying their land with industrial man-camps.
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.
About the pipeline: Coastal Gas Link 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 Gas Link 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.
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 BC’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.
Read the statement of claim of Likhts’amisyu clan: https://raventrust.com/wp-content/uploads/2020/02/Likhtsamisyu-SoC-Feb-10-2020-signed-1.pdf
“The climate crisis is already hitting our House territories hard. You only have to look at the shrinking Hudson Bay Mountain glacier and count the salmon. If Canada is allowed to continue approving infrastructure for fracked gas projects on a 40-year timeline, our territories will become a wasteland before the project licenses expire.”