At 4 a.m. on Feb. 6, a large force of the RCMP assaulted the Unist’ot’en 39 km camp and blocked media access. Six land defenders were arrested (and released shortly thereafter), and journalists were removed due to “safety concerns.”
The following day saw raids at another Unist’ot’en camp, at the 44 km mark. This time, with four people arrested and defences torn down. On Friday Feb. 10, 11 more were arrested including three Hereditary Chiefs as the RCMP pushed forward with K-9 units on behalf of Coastal GasLink, tearing down memorials for Missing and Murdered Indigenous Women along the way.
hese assaults are troubling for a number of reasons, both contemporary and historically. Thus, as more information comes from British Columbia and the Unist’ot’en camps, it is important to keep in mind why those who oppose the pipelines and Canada’s actions are fighting an important battle. Fundamentally, the land and water defenders are also defending freedom and justice.
In 2007, the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). This declaration was and is an incredibly significant declaration by the United Nations, as it affirms and recognizes Indigenous rights and directly opposes colonial policies. While 144 nations voted for UNDRIP, Canada, along with three other nations, voted against it.
While UNDRIP is a non-legally-binding resolution, Canada decided to change its vote in 2015 and to adopt the declaration, yet we stopped there. UNDRIP has yet to be implemented in our constitution. The declaration states many things, but one of the most important parts, particularly in Canada where land disputes are commonplace, is the right of Free and Prior Informed Consent.
The UN breaks down each aspect of this right.
First, “free” consent is “consent given voluntarily and without coercion, intimidation or manipulation.” It must be self-directed, and done so by the terms of the community whose consent is desired. For the Wet’suwet’en First Nation, consent for pipeline construction should be collectively agreed upon by its members, free from outside pressure. In other words, consent can only be given with consultation of the Hereditary Chiefs, who hold title rights, and without the outside pressure of the band council, Government of Canada, and armed RCMP presence.
“Prior” consent is sought well in advance, not after heavy machinery and work crews are already en route.
“Informed” consent means that all information regarding the nature of consent is provided and made clear to those giving consent. For the Unist’ot’en, that means the results of environmental inquiries are full and clear, and that due process is followed regarding environmental policies. It also means that visitors demonstrate the nature of their visit and their intent once on the land. That is, visitors to the land must consult with the title holders before entering, stating why they want to visit, and what they plan on doing once they are there. Finally, at any point in this process the party in question has the right to revoke consent.
Lastly, the UN definition of consent affirms that consent is the “collective decision made by the right holders and reached through a customary decision-making processes of the communities.”
What this implies is that the decision of allowing the construction of pipelines is not a decision that rests solely with the band council, elected on terms dictated by the Indian Act. Rather, consent should be given by all, specifically the Hereditary Chiefs, in accordance to Unist’ot’en law.
Part of decolonizing is recognizing and respecting systems of law and governance that are separate and free from the colonial system. In 1997, the Supreme Court of Canada made a landmark decision in Delgamuukw v. British Columbia. The decision essentially confirmed the existence of the inherent and pre-existing rights of Indigenous Peoples to their lands. For the Wet’suwet’en, this would mean upwards of 22,000 square kilometers in Northern British Columbia is recognized as being under the jurisdiction of Wet’suwet’en governance. Additionally, the decision recognized the Hereditary Chiefs as legitimate title holders to the land, thus they are able to maintain the jurisdiction and authority to uphold Wet’suwet’en law on Wet’suwet’en lands.
Under this system, Wet’suwet’en land title is “unbroken, unextinguished, and unceded”, and Indian Act provisions should not supersede traditional clan-based governance. Regardless of whether elected band councils have approved the pipelines, enough of the population has demonstrated opposition to pipeline construction such that the project should not be allowed to continue. That isn’t to say that elected councils and Hereditary Chiefs cannot work together, nor that non-colonial governments oppose economic and resource development. Rather, there must be a recognition and affirmation of non-colonial laws and governmental structure under UNDRIP.
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While it may be inconvenient to be late for work or miss your train due to Wet’suwet’en solidarity, it would be even more inconvenient if ViaRail decided to build a new train line directly through your legally owned and unceded house and property, despite your obvious opposition.
Truth and Reconciliation means nothing until UNDRIP is implemented, affirmed, and recognized throughout the country, and armed police are not used to push the agendas of corporations.
In the words of UN Secretary-General Ban Ki-moon, “there can be no development for indigenous peoples without their free, prior and informed consent and without them being involved in every step. These fundamental principles are enshrined in the UN Declaration on the Rights of Indigenous Peoples.” Until our governments, corporations, and the institutions we are a part of divest from fossil fuel industries, the cycle will repeat itself.
Thus, for all intents and purposes, Wet’suwet’en First Nation has revoked, and continues to revoke, its consent. The Unist’ot’en are not protestors, rebelling against the government. That is, “the Unist’ot’en homestead is not a protest or demonstration… Our traditional indigenous legal systems remain intact and continue to govern our people and our lands.” Wet’suwet’en lands were never ceded or surrendered, and treaty nor contract gave permission to Canada to have its way with the land or its people. Canada simply enveloped and encompassed it during its slow imperial march west, as it attempted to connect its Pacific claims to the territories in the east. While it may be inconvenient to be late for work or miss your train due to Wet’suwet’en solidarity, it would be even more inconvenient if ViaRail decided to build a new train line directly through your legally owned and unceded house and property, despite your obvious opposition.
That is why their fight isn’t simply in opposition to the pipelines. It is in opposition to the lingering shadow of the Indian Act and colonialism, a force that is still very much alive in Canada and abroad. The Unis’tot’en are not dissenters, they are defenders. They are not anarchists, they are avengers. They are fighting a centuries-old fight against the assimilatory and destructive policies of colonial and imperialist governments. They are not breaking Canadian law, they are upholding ‘Anuc niwh’it’en (Wet’suwet’en law) and the expectations set out by the United Nations. The world is watching Canada, with all eyes are on Wet’suwet’en.
While it may be inconvenient to be late for work or miss your train due to Wet’suwet’en solidarity, it would be even more inconvenient if ViaRail decided to build a new train line directly through your legally owned and unceded house and property, despite your obvious opposition.
A version of this article appeared in print in The Ontarion issue 188.2 on February 13, 2020.
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