Canada's First Nations people seek to 'evict' energy companies from land

Date of publication: 
23 August 2014

Indigenous people of British Columbia are emboldened by a court decision siding with tribe in land rights dispute

HAZELTON, British Columbia — A freight railroad operated by the Canadian National Railway stretches approximately 3,000 miles from Halifax in the country’s east to a port on the Pacific Ocean in the remote northwest. Here, in this heavily forested region, a group of First Nations people called the Gitxsan has resided for thousands of years.

A dispute over land now has Gitxsan hereditary chiefs threatening to grind trade along that route to a halt. If the British Columbia (B.C.) government doesn’t address the Gitxsan’s concerns by Sept. 16, the group’s leaders say they could begin service disruptions along the railway through their territory, escalating a longstanding feud with the province.

Last month, chiefs served what they called “eviction notices” to the national railway, logging companies and sportfishing operators, asking them to halt commercial activities in the aboriginal people’s sleepy territory. Additional police have been dispatched.

“Everything is on the table until we get our desired result,” said Beverley Clifton Percival, a negotiator for the Gitxsan who also goes by her First Nations name, Gwaans.

The Gitxsan say the province has included land inhabited by their people in treaties proposed for two neighboring Indian bands. Placing new pressure on the Gitxsan’s stalled land negotiations is the natural-gas boom spurred by hydraulic fracturing (fracking). In fact, the Gitxsan Treaty Society, a negotiating body composed of a small group of hereditary chiefs, has broken off discussions on two proposed pipelines that would transport liquefied natural gas, or LNG, through their territory. There’s also intense debate in the province about plans to construct two pipelines for the transport of heavy crude oil from the neighboring province of Alberta to Canada’s west coast. One, Enbridge Northern Gateway, would run near Gitsxan territory.

The Gitxsan and First Nations peoples across the country have been emboldened by a June Supreme Court of Canada decision they describe as a “game changer.” In that case, the court sided with the Tsilhqot’in First Nation, a band of roughly 3,000 people residing in British Columbia’s interior, in a dispute over commercial logging. The court ruled that because the Tsilhqot’in were found to hold “aboriginal title” over the territory in question, their permission was required before logging could proceed.

“Canada is witnessing something that I call the rise of native empowerment,” said Bill Gallagher, a lawyer and author who specializes in First Nations legal challenges. “The Supreme Court of Canada has declared, verbatim, that the doctrine of terra nullius — that nobody was here when flags were planted by colonizers — that that doctrine does not apply in Canada.”

At her office in the small town of Hazelton, Clifton Percival said her people are prepared to apply their eviction notices to the Gitxsan’s entire territory, an area nearly three times the size of New Jersey. It’s unclear what force the eviction notices carry, but the recent court decision raises the possibility they may have teeth.

“We saw the devastation of forestry practices through the ’70s and ’80s,” she said. “That is why there is opposition to Enbridge, that is why there is opposition to LNG. … We need to be looking at these issues and understanding what the real implications are on the ground.”

Clifton Percival said the emerging consensus among Gitxsan chiefs is that the environmental risks of the proposed LNG pipelines are too great. The projects would conclude at terminals that would be constructed in estuaries, where a leak or any kind of industrial accident would devastate wild salmon populations, on which the Gitxsan depend for their traditional way of life.

“Our interests are primarily water and fish,” Clifton Percival said. “That is what we will go to battle for.”

On a recent visit to a fishing camp on the Skeena River, she stopped to meet with other Gitxsan and discuss a code of conduct for how additional eviction notices should be served. She stressed civility and respect.

“We are peaceful, we are nonviolent and we do not want confrontation,” she said. “The liability for all of this action rests on Canada and British Columbia. We are in a very strong position now.”

Federal and provincial government officials declined interview requests. In emailed statements, they said relations with First Nations people remain positive and that negotiations are ongoing. “The Government is committed to ensuring that Aboriginal communities and governments are fully engaged in the responsible development of major energy infrastructure projects,” Michelle Aron, a communications officer with Natural Resources Canada, said in an email.

But an Aug. 6 meeting in Hazelton between Gitxsan chiefs and representatives of British Columbia’s sportfishing industry gave an indication of how far apart the two sides remain on issues significantly less complicated than multibillion-dollar energy projects.

The Gitxsan peoples complain that their traditional fishing grounds are crowded with sportfishermen who come from as far afield as the southern United States. Every year, the province issues more than 40,000 sportfishing licenses. Now, the Gitxsan say they will no longer recognize those permits.

After nearly an hour of discussion, Luutkudziiwus (Gordon Sebastian), executive director of the Gitxsan Treaty Society, let his frustration show.

“Let’s get to the issue: You’re evicted,” he said. “You’ve had a good 50 years. But it’s come to a head.”

The Supreme Court decision is just the latest in a long string of First Nations court victories in cases involving resource projects — nearly 200 since 1985, according to Gallagher, the lawyer.

The Gitsxan’s actions demonstrate that First Nations are showing renewed resolve in disputes with the government,” he said. “In some respects, Canada is a country at war with itself when it comes to resource access.”

According to Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, 11 First Nations bands have filed separate but coordinated court challenges since the June ruling, aimed at stopping the proposed Enbridge Northern Gateway pipeline, which would carry heavy crude oil from oil sands in neighboring Alberta to B.C.’s coast, from which it would be shipped to foreign markets.

“What we are witnessing is the manifestation of the frustrations of our rights and interests being denied by both Canada and B.C.,” he said. “The Tsilhqot’in decision is an absolute game changer. So I think the Gitxsan people are serving notice that things have changed.”

The court action was in part the result of a case largely built on a landmark 1997 Supreme Court judgment known as the Delgamuukw decision.

Now 78 years old, Delgamuukw, who also goes by Earl Muldon, has semiretired from political activity. His 13-year legal battle eventually resulted in a finding that Canada’s First Nations peoples can claim aboriginal title to lands they inhabit, and that they should be consulted if development on those lands is to occur.

On a recent August day, Muldon was at work on a totem pole in a modest woodshed at the edge of his family’s property in Hazelton.

“It was beautiful,” Muldon said of the decision. “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.”

Muldon said he doesn’t agree with everything the Treaty Society is doing, a sentiment shared by a number of Gitxsan chiefs. They argue that threats of evictions and service disruptions are a needless escalation of tensions, and say that loggers and fishing operators who have positive and longstanding relations with First Nations people are now at risk of being caught in the crossfire. Muldon declined to specify his objections to the Treaty Society’s approach, but he emphasized that even those who disagree have generally come to distrust the government and oppose its push for LNG development on Gitxsan land.

Hloax (Bridie O’Brien), another Gitxsan chief, said that even if their First Nation is divided on the matter of evictions, the majority of her people agree that the environmental risks of energy development outweigh the potential economic benefits.

“We’re not opposed to all [LNG] pipelines,” O’Brien said. “But we are opposed to the extraction of natural gas with fracking, and we are opposed to the fact that they are going to put these [LNG] plants in the estuaries of our fish.”

Shannon McPhail is not a member of any First Nation. But the sixth-generation resident of Hazelton said it’s not just aboriginal people who are concerned about proposed energy projects.

A pipe welder by trade whose husband works in the oil sector, McPhail and her family could benefit from an expansion of LNG projects in the province. “But the more I looked into these developments to figure out what we would need to work there, the more that red flags went up,” she said. “It was a very long, awkward and heartbreaking evolution to realize that government doesn’t always have our best interests at heart and that industry really isn’t here for the betterment of our community.”

Like Clifton Percival, McPhail said she was worried about the prospective locations of the pipeline terminals on British Columbia’s coast. “They were proposing to put these things in our estuary, which will be the tipping point for our wild salmon.”

Many living on Gitxsan territory blame the government for allowing land negotiations to drag on for so long. Doug Donaldson, the region’s elected representative, said the discussions are occurring “in a context of a litany of distrust.”

He said he had heard that the province is planning to hold meetings in September with Gitxsan hereditary chiefs. “The government is saying, ‘We’re going to wait and see how serious they are.’ Well, in my experience, the Gitxsan do not issue idle threats.”