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    Who is really breaking the law?


    Briony Penn

    Recent protests in support of the Wet’suwet’en could be a teachable moment, if only we study history and listen.

     

    THE RECENT PROTESTS AND OCCUPATION of the BC Legislature by young members of the Wet’suwet’en/Gitxsan First Nations, other First Nations, and settler allies, continues a 140-year tradition of reasonable requests being met by unreasonable responses from government. It seems crucial to hear these reasoned requests, so here, for the record, we invited some young protesters to explain what’s at stake and how they are upholding not only their own laws and rules of honour—but Canadian laws.

     

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    Shaylynn Sampson

    “My name is Shaylynn Sampson. I grew up in the Wet’suwet’en community hearing about the Delgamuukw court case. It was before my time, but my great aunt was closely linked to the folks that were doing that. The court case is so closely related to what we are doing, which is continuing to defend this land. It isn’t something new, defence of this land has been going on for a very long time—since settlers first came to our territories. My ancestors have been fighting for this for hundreds of years.

    “There is a failure to understand the difference between the band council and hereditary leaders. The band councils were set up under the Indian Act to police people. It is helpful to recognize that the band council and that system was put in place specifically to undermine the hereditary chief, which continues still to this day. Traditional governance is all done in the feast hall and has witnesses and it is so much more. It is so important that an understanding of this is correct.

    “Red dresses [hanging at protest sites] are there to symbolize missing and murdered indigenous women [MMIW]. [The hereditary chiefs] are filing a complaint against the government’s Environmental Assessment Office permit process, for not taking into account the statement in the MMIW report that specifically links man camps [such as Coastal GasLink is building] to the violence. I grew up on Highway 16 so I know how serious that issue is. We can’t think about the violence against the land and violence against ourselves as not intrinsically linked.

    “What happens on Wet’suwet’en territory is integral because it can happen to any Indigenous Nation. We want to drive this idea forward. The state is willing to commit violence against us and where they have done it once, they can do it anywhere.”

     

     

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    Gina Mowatt (photo by Lauren Sortome)

    “My name is Gina Mowatt. I’m Gitxsan, and my Nation is right beside the Wet’suwet’en Nation, we’ve been allies forever, and support each other and have been very close prior to colonization and beyond, and now we stand with each other in struggle against the violence against our land, our peoples. We have also worked together in court cases.

    “This is a struggle that we’ve inherited as Indigenous people, so for me, being here is my responsibility and role as an Indigenous person who knows our laws. I know who I am as a Gitxsan person so I have to stand up for the land, I have to stand up against colonial violence against our people and the animals and the water to ensure that there will be a future for coming generations, so that’s why I’m here.

    “I live in Victoria and there are so many opportunities here to put pressure on the colonial government and to make sure that we do everything that we can here to take pressure off the folks up north who feel the brute force of the colonial violence…and we can’t stand idly while ‘our’ government chooses over and over again to enact violence against people as if they’re not human and they don’t have human rights.

    “Canada has implemented UNDRIP and the TRC and they go in and rip people off their homeland and throw them into jail cells; we cannot stand by and let that happen. My main reason for being here is to try and bring the front line of resistance to Victoria where it should be because this is where the problem resides.

     

     

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    Hannah Carpendale (photo courtesy Ancient Forest Alliance)

    “My name is Hannah Carpendale; I am a settler ally. The suggestion that the only acceptable way to advocate for change is through lawful means, as suggested by BC Premier John Horgan, ignores the years of work spent by Wet’suwet’en land defenders opposing severe injustices through ‘acceptable’ channels that have proven ineffective. This position also shows an ignorance of the way in which many social changes from which we benefit have come about through the course of history—namely, through disruption of the status quo in ways that were not, at the time, considered acceptable.

    “When considering the land defenders who have contributed so much to these efforts because it is the only clear, morally responsible path forward, the inconvenience of a missed appointment, an hour’s wait at a highway blockade, or a missed train connection seems a small price to pay. In contrast, the inconvenience of colonization, cultural genocide, and Coastal GasLink’s continued attempts to bulldoze their way over unceded Wet’suwet’en territories—damaging cultural sites, healing spaces and intact ecosystems—seems immeasurably greater.”

     

     

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    Kolin Sutherland-Wilson (photo by Lauren Sortome)

    “My name is Kolin Sutherland-Wilson. I am Wet’suwet’en. We have to deconstruct this narrative Canada is creating regarding the elected band councils and Wet’suwet’en hereditary chiefs. Even the English language is so problematic when applying to this—the leaders of the Wet’suwet’en are the Dinï ze’ and Ts’akë ze’. [The term] ‘hereditary chiefs’ is a colonial imposition on Indigenous leadership—in no way are the Dinï ze’ and Ts’akë ze’ a form of monarchy, there is so much accountability and responsibility to the people.

    “How would Canada feel if we infringed on its sacred spaces? This space here is on stolen land; it is the territory of the Lekwungen Nation. We are reclaiming this space and pointing out the real colonial origins of Canada. Canada acts as a colony using military force to invade nations, displace people, and extract wealth from their territories.”

     

    KOLIN SUTHERLAND-WILSON’s words echo an 1884 declaration by Gitwangak chiefs reacting to the imposition of the reserve system. The declaration included a question: “[W]e would ask you, would it be right for our Chiefs to give licenses to members of the tribe to go to the district of Victoria to measure out, occupy, and build upon lands in that district now held by whitemen as grazing or pasture land? Would the whitemen now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the government permit it? Would they not at once interfere and drive us out? If it would not be right for us so to act, how can it be right for the whiteman to act so to us?”

    As the century turned, those questions remained unanswered and leaders from many Nations continued to petition governments for meetings, but it wasn’t until the McKenna/McBride Commission in 1915 that those requests were granted. In 1915, the Commissioners arrived at a reserve near Hazleton for the afternoon and asked leader Edward Souk/Spoukw why he was there, to which he responded: “We want to get our own land back, that is all.” The commissioners stated that he was wasting their time and left shortly after.

    By 1926, Indigenous leaders had formed the Allied Tribes of BC, taking their petitions to governments in Victoria, Ottawa, and London. When that alliance was undermined, the Native Brotherhood of BC formed in the 1930s to continue the cause, sending more delegations to the three centres of government, all unsuccessful.

    The BC Union of Indian Chiefs took up the banner in 1969 to continue the land question and Wet’suwet’en leader Misilos/Victor Jim became a key leader of the Gitksan-Carrier Tribal Council to advance legal action stating that their “hereditary lands” be set out in a map.

    Two years after neighbouring Nisgaa leader Frank Calder had successfully sued BC—seeking a declaration that aboriginal title had not been extinguished—the federal government agreed to negotiate comprehensive land claims over territory outside the reserve system, and the Wet’suwet’en began a process of mapping their boundaries to accompany their claim. Neil Sterritt, Gitxsan member, writes in his book Mapping My Way Home about the subsequent 14-year process of mapping the Gitsxan/Wet’suwet’en territories. Thirty-four elders born between 1890 and 1920 travelled throughout their territory while Sterritt and others helped record the place names and history. One of the Wet’suwet’en elders was Gisday Wa/Alfred Joseph, who played a major role. Another was Albert Tait from Kispiox—Delgamuukw himself. As Sterritt describes it, “they had grown up on the land and knew their histories, territories and laws. Their memories reached back to and beyond the time first Europeans started to settle our lands. We recognized that within a few short years, the legacy of those witnesses would be lost.”

    Originally, the maps were to provide the key evidence for their comprehensive land claim, but that eventually turned into a lawsuit out of frustration with the delays and the continued industrial encroachments on their territory. In 1984, while blockading CP Rail lines to try and stop the clearcutting of their territories, the Nations decided to pursue a lawsuit. It took three more years to get into court and then they had 318 days to put forward their maps and testimony. Peter Grant was their lawyer.

    The elders were subjected to humiliating and exhausting cross-examination by Provincial Justice Allan McEachern who infamously dismissed these extraordinary oral witnesses as “vagrants” whose lives were “nasty, brutish and short.” According to Grant, McEachern “did not have the capability of understanding or hearing what was being said.”

    It took another six years before the Supreme Court of Canada overturned most of McEachern’s opinions in its 1997 ruling on Delgamuukw. During that time many of the elders like Delgamuukw had died. The appeal court unanimously ruled that the Province had no jurisdiction over their territory without consent from the government of the First Nation. It was established that the Indigenous Nation had a system of law that predates the days of elected band councils enacted under Canada’s Indian Act. The elected band councils’ authority is limited to decisions about reserve lands. Under traditional Wet’suwet’en law, hereditary chiefs are responsible for decisions regarding ancestral lands. And as Wet’suwet’en Dinï ze’ Frank Alec/Woos stated in a CBC interview on February 12, 2020: “We have always maintained our stance on this. The hereditary chiefs are just saying no to all the pipelines on the territorial lands.”

    As lawyer Grant stated in a February CBC interview (in response to the media framing of the issue as one of complexity, internal division, and inconvenience): “It is not complex. The Supreme Court of Appeal and subsequent court cases recognized that the legal title carriers are the hereditary chiefs—when we are speaking of the Wet’suwet’en—and that is in Delgamuukw. There is no question that the proper title holders recognized now, and later in a 2014 decision, were the hereditary chiefs. The BC Supreme Court in the recent Canfor decision recognized that the system of government includes the feast hall, as chief Woos told you, and that the feast system is tied to territory.”

    In that same CBC interview, Minister of Indigenous Relations and Reconciliation Scott Fraser was asked how he justified only listening to elected leadership given Delgamuukw. He stated: “The court didn’t go quite as far enough in my opinion to clarify that…There is no question that it confirmed that there is aboriginal title, it just didn’t say who and what. I guess it was going to require subsequent court action that did not occur…The courts are one way of dealing with it, but they have been telling us it is not the right place. They have been asking government to get on with legislation.”

    BC’s Select Standing Committee on Aboriginal Affairs has not met since 2001 despite calls for two decades from the Wet’suwet’en, and many others, to follow up, given continued industrial intrusions into their territory. Fraser and Premier Horgan refused to meet and speak with these young people, educated in both legal traditions, who brought the concerns of their community one more time to the steps of the Legislature—and were snubbed yet again. Minister Fraser has since announced that for the first time since Delgamuukw, a committee will meet with the leadership.

    We have been given yet another chance to hear from a governance system that is based on accountability and responsibility to future generations, with a foundation that doesn’t distinguish human health from the health of land and water. This time the stakes are so high that we fail to listen at our peril.

     

    For a timeline of the history of the Gitxsan/Wet’suwet’en territories, see www.gitxsan.com/culture/culture-history/gitxsan-history-of-resistance/ and a good “explainer” on legal issues can be found at www.firstpeopleslaw.com.

    Briony Penn is an award-winning writer of creative non-fiction books including The Real Thing: The Natural History of Ian McTaggart Cowan, A Year on the Wild Side and, most recently, Following the Good River: The Life and Times of Wa’xaid, a biography of Cecil Paul (Rocky Mountain Books).

    Edited by admin

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