Pacific NorthWest LNG plans to build an $11.4-billion liquefaction terminal on Lelu Island (left). (www.lonniewishart.com)
Simogyet Malii is chief negotiator for the Gitanyow Hereditary Chiefs
There has been a lot of talk in Canada lately about cultural appropriation of Indigenous stories and imagery. This is a conversation that actually goes back to the origins of first contact between settlers and this land’s first peoples, and it is a conversation without end. The latest dust-up just happens to be a high point, or a low one depending on your point of view.
What seems to be forgotten is that all our stories, in whatever form they are told, are expressions of our relationship to our lands and waters and are inseparable from our traditional laws – in the case of my community, the Gitanyow, what we call our Ayookwx. This isn’t happening in art galleries or on the pages of high-minded magazines. This is happening on our lands and in the courts and legislatures, and it has to stop.
The Federal Court heard arguments earlier this month by a band council in northern British Columbia, the Lax Kw’alaams Band, and its industry backers, Pacific NorthWest LNG, who are seeking to deny the ancestral authority of a hereditary chief, Simogyet Yahaan, of the Gitwilgyoots Tribe of the Tsimshian peoples.
PNW LNG plans to develop part of Gitwilgyoots traditional territory, in particular Lelu Island and its adjacent salmon habitat in the mouth of the Skeena River. The band council, in Yahaan’s view, has exceeded its jurisdiction in signing deals with the company and senior governments without the Crown properly consulting with the Gitwilgyoots. There is a very powerful precedent by the Federal Court of Appeal, when it found the Crown failed to properly consult when it tried to build the Northern Gateway tar sands pipeline in the same region.
The current project, backed by Petronas, and approved last September by Justin Trudeau’s cabinet, must be stopped. Proper consultation hasn’t occurred with the Gitwilgyoots, the title holder under Indigenous law of the project area, and no real consultation has occurred with the Gitanyow, my people, who live upriver from the site and who will be deeply affected by damage to our salmon stocks.
The Gitanyow are challenging the federal government’s decision for its utter lack of regard for our rights, thanks to the failure of the Canadian Environmental Assessment Agency to consult with us before it green lighted the project.
But another legal challenge, in which the Gitanyow and the Gitwilgyoots are both demanding a judicial review of the decision to approve PNW LNG, is in many ways even more critical than the action to have the project killed because of lack of consultation.
This case turns on the critical issue of who has to be consulted in the first place. The Gitanyow have, consistently in all of our legal challenges, relied upon our hereditary chiefs, who are the custodians and protectors of our lands, to take up that challenge. Up to now, their authority has been recognized by the courts and by governments.
The legal challenge by the Lax Kw’alaams Band of Yahaan’s right to stand up in court and protect his tribe’s territory is unprecedented. It challenges the respect for aboriginal law and authority, and undermines any possible reconciliation between Canada and aboriginal peoples.
The band council argues that our traditional governance systems have “withered,” and that therefore, they now hold the rights. This is a clear violation of traditional laws. Our hereditary systems remain intact and strong, as they have for thousands of years.
Yahaan is a hereditary chief and is recognized in Indigenous law as one of the ancestral protectors of Gitwilgyoots territory. So anyone who wants to build on Gitwilgyoots territory has to consult with him. Instead, federal and provincial agencies chose to consult with the Lax Kw’alaams Band, which is a municipal council set up under the colonial Indian Act. Until 2015, the band council opposed the project but, in early 2016, current mayor John Helin suddenly reversed the band’s position and supported PNW LNG.
As Yahaan said when we filed for a judicial review of the project last October, “The new council deemed they could go out and take tribal territory and use it at their own discretion for oil and gas. Their only jurisdiction is on reserves. Outside that jurisdiction belongs to the tribes.”
This fight reached Federal Court in Vancouver on June 7 and 8, at which time the band council tried to head off the judicial review by having Yahaan effectively declared persona non grata with no legal rights to even be consulted, much less to protect Gitwilgyoots land as he is obligated under Tsimshian law.