A contested gas pipeline tests the landscape of indigenous law – who controls the land?

With members of the Wet & # 39; suwet en First Nation blocking a pipeline project on their traditional lands, Naoko was standing next to a crackling bonfire, next to an RCMP checkpoint, attracting snow with his right boot.

The hereditary chief of the Tsayu clan made a small circle to represent the authority of the elected councils within the reserves. Outside of that circle, he explained, is where Wet's suwet? En clans exert power over a vast territory.

"We are hereditary chiefs," he said, "and we have control over this land."

The temporary checkpoint was created earlier this week in a remote area of ​​the B.C. Inside things got tense, with RCMP police arresting 14 protesters on Monday in a blockade erected last month along a logging road.

The road leads to the Unist'ot & # 39; en Encampment on the Morice River Bridge, where hereditary leaders blocked the passage of construction workers from the TransCanada Corp. Coastal GasLink pipeline project. On Friday, the barriers were being overturned after demonstrators agreed to an interim injunction to give workers temporary access to the area. The way forward for the project, however, remains uncertain.

The pipeline is a vital piece of infrastructure for the launch of British Columbia's liquefied natural gas sector, providing LNG Canada's planned $ 40 billion project – the largest private investment in the province's history. Nearly a third of the proposed pipeline route crosses the territory for which Wet & # 39; suwet & # 39; en maintains Aboriginal rights & titles.

Coastal GasLink has signed agreements with First Nations along the 670-kilometer route, including Wet & # 39; s elected chiefs, who say the deals will bring economic benefits to their communities.

For both provincial and federal governments – which have made solemn commitments to respect indigenous rights and titles – the agreements mean the company has obtained sufficient consent for the project.

But who speaks for the people of Wet? Suwet? En?

Under Canadian law, elected chiefs have authority over the reserves created by the Crown. But authority over the 22,000 square kilometers of Wet & # 39; s traditional territory involves a matrilineal system of 13 single houses, five clans and 38 inland territories. Under this system, Naoko, which belongs to the Beavers' house under the Tsayu clan, is one of the hereditary leaders required to manage how these lands and resources are used.

The project launched deep divisions and highlighted the conflict between these two systems of leadership – one old, transmitted by oral tradition, the other established and codified by federal law. He demonstrated the confusing but necessary processes that resource companies and governments must face when seeking projects in British Columbia. And it forced indigenous groups to address the tensions within their own communities – the painful trade-offs between economic development and the old land administration obligations.

Chief Jackie Thomas, the elected chief of the First Nation Saik, said she worked hard on behalf of her community to secure an agreement and the benefits that will come as a result of the construction.

"We went through this long process in our community and made sure that our concerns and concerns were resolved. We have had pessimists – they exist in every community – but we have solved this. I personally worked hard for this and was happy to see a final investment decision reached. "

But she said that politicians and the company would have been wiser to deal directly with hereditary bosses as well.

"It would help if Premier [John] Horgan and Prime Minister [Justin] Trudeau would go to the party house in Wet & # 39; suwet & # 39; en, talk to the hereditary chiefs and give serious attention to this matter, "she said. Let's take some time and resources to see this. "

Trudeau, responding to heated questions about his government's support for the pipeline at a town hall meeting this week, said it was up to Wet's people to decide who represented them.

"It's not up to the federal government to decide who speaks for you," he said. "My job is to work with all of you so that you take control of your land, your future, your people, your destiny. … And it's difficult. "

Nowhere in Canada authority lines are more obscure than in B.C., where large resource developers stumbled several times about how to consult and get support from indigenous peoples for their projects. The province harbors 203 bands of the Indigenous Act and most of the land remains subject to indigenous claims.

Horgan met with Wetland's hereditary chiefs on August 31 in Smithers, hoping to find a way to resolve the brewing conflict at Camp Unist'ot. He left without a resolution and concluded that the project had sufficient indigenous support despite the opposition.

"The challenge for the federal and provincial government is to determine how we have brought together these historic councils of bands modeled with, as I understand it, the emerging hereditary model that manifests itself in the territory of Wet & # 39; suwet & # 39; en," said the premier told reporters. at a news conference on Wednesday, after the prisons provoked rallies across the country. (He later clarified that he intended to say "resurface.")

Val Napoleon, an influential Indian scholar who holds the position of chair of the Law Foundation in the Aboriginal Justice and Governance program at the University of Victoria, said the premier has it all behind: the band's electoral councils are, ; suwet & # 39; en, a new invention. The community has been governed by the hereditary model, she said, "since the earth was forming," with a full set of laws that is the task of resolving internal disputes and providing binding decisions.

She said there is a way forward, but the federal and provincial governments need to make a substantial commitment to bridge the gap between indigenous law and Canadian law.

"Indigenous legal orders need support to rebuild and reaffirm legitimate processes so that when a decision is made, people will confirm it, even if they do not do what they want. That is the legitimacy that is needed, "she said. And now, this is not happening. "

For the Canadian resource industry, doing business in the vast areas of British Columbia, where land claims have never been resolved, this complexity can be frightening and discouraging.

Susana Pierce, LNG Canada's director of external relations, welcomed the truce negotiated late last week, but in a social media post she said: "While this is good news, we remain concerned that the agreement refers only to one injunction and specific activities – not the complete construction of the pipeline. In fact, Unist'ot's social media posts indicate that the fight is just beginning. "

This week's protests drew international attention and sparked discussions about the differences between the Wet & # 39; suwet & # 39; s & rsquo; s hereditary chiefs and elected officials under the Indian Act.

But that distinction should not have come as a surprise. The hereditary leaders of the Wet & # 39; suwet & # 39; en have been claiming ownership of their traditional territory for decades, mainly in Delgamuukw v. British Columbia. In this case, launched in 1984, the hereditary chiefs of Gitxsan and Wet & # 39; suwet & # 39; en claimed ownership of 58,000 square kilometers of territory. In a historic decision in 1997, the Supreme Court of Canada confirmed that indigenous peoples have valid claims to ancestral lands that have never been ceded by treaty.

"For more than 21 years, the governments of Canada and BC and any lawyer who has done any kind of aboriginal law would understand that when you are dealing with people from Wet & # 39; suwet & # 39; en … in traditional territory, you is talking about a system of hereditary bosses, "said Peter Grant, a veteran lawyer who represented the plaintiffs in Delgamuukw in a recent interview.

Energy companies in western Canada have a long history of involvement with indigenous communities and understand that there are divergent opinions and possible opposition even after signed deals, said Brian McGuigan, Indigenous Relations manager for the Canadian Association of Petroleum Producers.

"This certainly is not the first time a company gets a deal with elected officials and another part of the community says," Well, wait a minute, we have something to say about it, "he said.

It is an issue that must be resolved within indigenous communities, but governments are also dealing with this, especially since both BC and Ottawa are preparing to enact the principles of the UN Declaration on the Rights of Indigenous Peoples, which stipulates that they must give their consent to industrial development in their traditional territories. In endorsing the statement, the federal government said it would aim to secure indigenous consent to projects, but did not guarantee that.

There is a parallel process also in the definition of indigenous self-government.

Trudeau, who made reconciliation with indigenous communities an important theme of his administration, condemned the Indigenous Act – under which elected councils of gangs were established – as a relic of the colonial past and encouraged the First Nations to seek their own government. models. But this process has a long way to go.

For the Wet & # 39; suwet & # 39; who oppose the pipeline, the agreements signed between pipeline proponents and elected band councils mean little. Molly Wickham, a spokeswoman for the blockade along the logging road and one of 14 people arrested on Monday, insisted the pipeline "absolutely not" will be built.

"This is far from over," she said. "This is not just about the pipeline, it's not just about this project, it's about how our people and our governance system were ignored, diminished and attacked – and how we ended it."

The role of hereditary chiefs in Wet & # 39; suwet & # 39; in Nation