Wednesday, September 17, 2014
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Gitxsan test new legal landscape for First Nations' grievances across Canada

Travis Lupick

One afternoon in early August, the Georgia Straight found 78-year-old Earl Muldon in a modest woodshop behind his family’s home in Hazelton, northwestern B.C.


Muldon, who also goes by his Native name Delgamuukw, sat alone and in silence, etching out the details of a totem pole he was carving for a neighbouring house of the Gitxsan First Nation, of which he is also a member.

“This cedar, this one here is about 430 years old, this tree,” he said in lieu of an introduction.

The name Delgamuukw has earned a position in Canadian history as shorthand for a landmark 1997 Supreme Court of Canada decision that states governments and corporations must “consult” with First Nations before developing land to which an aboriginal claimant can prove it holds title. It was central to a June 2014 Supreme Court ruling known as the Tsilhqot’in decision, which raised the bar for development to require a First Nation's “consent” in addition to consultation.

“It was beautiful,” Muldon said of the day the Tsilhqot’in ruling was announced. “They took Delgamuukw the next step further. They showed Canada that there are people who are going to fight them, that are going to correct the wrongs that have gone on.”

Nearly 20 years after Muldon’s court victory, the Tsilhqot’in decision provides a legal framework through which the Gitxsan First Nation could seek to exercise tangible control over its land. But some members aren’t waiting for another lengthy legal battle to work its way through the courts. Other B.C. First Nations are doing the same.

On August 13, the Neskonlith Indian Band cited the Tsilhqot’in decision in an eviction notice targeting Imperial Metals Corporation following the Mount Polley mine tailings pond breach. And in Vancouver, First Nations people involved in a protest for affordable housing ongoing in Oppenheimer Park also cited the Tsilhqot’in ruling as reinforcing their right to pitch tents on land they describe as unceded Coast Salish territory.

But it’s the Gitxsan First Nation that has the Delgamuukw decision bolstering its claims, and those of some of its members who have taken tangible steps to enforce control over companies operating in their territory.

Hereditary chiefs have issued eviction notices to CN Rail, logging companies, and sport fishing operators active in Gitxsan territory, which consists of 33,000 square kilometres of land north of Smithers. They’ve given a deadline of September 16 before further action might commence.

The group spearheading the escalation of tactics, the Gitxsan Treaty Society (GTS), has also ceased negotiations on pipelines proposed for Gitxsan territory. Affected developments include Spectra Energy’s West Coast Connector Gas Transmission Project and the Prince Rupert Gas Transmission Project.

Everything is on the table

At a camp along the Skeena River, two members of the Gitxsan First Nation sorted through a pile of eviction notices and discussed a code of conduct for how those letters should be delivered.

Gwaans (Beverley Clifton Percival), a negotiator for the GTS, explained the dispute relates to the province including Gitxsan land in treaties proposed for the neighbouring Kitselas and Kitsumkalum bands. The GTS is targeting private companies as a means of pressuring the government to meet its demands, she said.

“Everything is on the table until we get our desired result,” Clifton Percival continued.

In July, the GTS threatened to target CN Rail with “service disruptions”. That action was postponed, but it’s not off the table and could commence on or after September 16, she added. Another option discussed among the Gitxsan is to apply for an injunction barring CN Rail from passing trains through Gitxsan territory.

Ska’yan (Anita Davis), who runs that camp near the southern edge of Gitxsan territory, noted that the Gitxsan people have a history of sticking to their guns. Muldon’s long journey to the Supreme Court of Canada is just one example, she said, adding, “When you grow up in our hereditary system, it’s deep-rooted in you that you’ll do whatever it takes.”

Clifton Percival described Tsilhqot'in as having “put British Columbia on notice”.

“It says consent must be given by the aboriginal title land holders, and we are the proper title land holders for our area,” she emphasized. “So we are in a very strong position now. The Crown must gain consent, as must proponents, if they want activities on Gitxsan land.”

CN Rail declined to grant an interview. According to an emailed statement supplied by spokesperson Patrick Waldron, the B.C. Supreme Court has awarded CN Rail an injunction “barring anyone from trespassing on CN’s rail line between Smithers and Terrace, B.C., or physically obstructing CN’s train operations in this corridor”.

Requests for interviews with both federal and provincial levels of government were refused and met with vague emailed statements claiming negotiations are ongoing.

No idle threats

Doug Donaldson is the NDP MLA for Stikine (which includes the Gitxsan’s territory) and the former Opposition critic for aboriginal affairs. Interviewed at his office in Hazelton, he told the Straight it’s his understanding the province is planning for September meetings.

He noted that the First Nation has escalated its dispute with the railroad, stalled negotiations on two LNG pipelines, and threatened to disrupt this summer’s sport-fishing season. Donaldson asked why, with a deadline set to expire on September 16, B.C.’s Ministry of Aboriginal Relations hasn’t acted sooner.

“The government is saying, ‘We’re going to wait and see how serious they are,’” he said. “Well, in my experience, the Gitxsan do not issue idle threats.”

On August 6, Gitxsan chiefs and representatives of the B.C. Wildlife Federation, which represents many of the sport fishermen served with eviction notices, held a meeting in Old Hazelton. That exchange revealed how far apart all sides remain. After nearly an hour of discussions, Luutkudziiwus (Gordon Sebastian), executive director of the GTS, let his frustration show.

“Let’s get to the issue: You’re evicted. What do you want us to do?” he asked. “You’ve had a good 50 years. But it’s come to a head…. Consent is the issue. The government needs consent to give out 43,000 [sport fishing] licenses.”

George Wilson, president of the BCWF, appeared at a loss for words. “How do they [sport fishermen] learn to show respect?” he asked. “How do they get your permission?”

Bordering on brinkmanship?

On the phone from Ottawa, Bill Gallagher, a lawyer and author who specializes in aboriginal legal challenges, recalled being in the courtroom when the Delgamuukw decision was delivered in 1997. He then recounted his initial reaction to the Tsilhqot’in ruling last June.

“I said to myself, ‘If there is one First nation in the country that will exert its influence, it will be the winners of the Delgamuukw aboriginal title test ruling,” he said. “What we’re seeing today is that this First Nation—the one that left court somewhat emptyhanded in 1997—it’s embarking on eviction notices and apparently backing them up.”

Gallagher however cautioned that while the Gitxsan may feel entitled to exert authority over their land, and while those assertions may ultimately be found to be justified, the Gitxsan have yet to work their way through the courts and meet the legal bar set by the Tsilhqot’in decision.

“They are overreaching,” Gallagher said. “Their actions, it borders on brinkmanship.”

Support for the GTS is far from universal among the Gitxsan First Nation's people. Muldon’s son, Brian, for example, took issue with its tactics and what he described as questionable spending.

But Brian also voiced strong opposition to proposed energy projects, a sentiment shared by most Gitxsan members the Straight spoke with for this story.

“It’s pretty crazy, what’s going on,” he said. “The government is offering one-time payments like peanuts. Why would you accept a one-time payment for a pipeline that’s going to be going through your territory for 25 to 30 years?”

At the same time, Brian questioned if any amount of money is worth the environmental risks posed by pipelines and natural gas facilities constructed in fish estuaries.

“To the people here, the land is everything,” he said. “The land is your culture. Without the land, what are you?”

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