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<thread> So, somewhat belated, but a few comments on the Kitimat LNG protests.

The proposed natural gas pipeline would cross Wet’suwet’en traditional lands. A number of Indigenous people, represented by hereditary chiefs, oppose the project. Others support it.

1/
The land in question is unceded Aboriginal land. This means that there has been no treaty signed which cedes title to it. Nor has the Crown unilaterally extinguished Aboriginal rights to it (prior to the enactment of the Constitution Act, 1982, the Crown could do this).

2/
However, the land is still under Canadian jurisdiction. Federal law as well as provincial law of general application still apply, both on reserve land and any land to which Indigenous peoples hold Aboriginal title.

3/
While the rights and title have not been extinguished, they also have not been determined. AFAIK, there has been no resolution of the extent to which the Wet’suwet’en have title or other Aboriginal rights. Canada and BC have been negotiating with the FNs for some time now.

4/
This is despite Delgamuukw v. British Columbia, the (literally) landmark 1997 SCC decision on Aboriginal title, which was initiated by, inter alia, a number of hereditary Wet’suwet’en chiefs regarding their traditional lands.

scc-csc.lexum.com/scc-csc/scc-cs…

5/
Nevertheless, in order to approve the pipeline, BC (as the responsible level of government) had to consult the affected First Nations. This is the same duty Canada had failed to fulfill with its initial approvals of TMX and NGP.

6/
Consultations must cover the likely effects to the claimed rights. The level of consultations depend on the strength of the claim (how much evidence currently exists to support the claim) and the degree of impact on the right.

7/
In the case of an Aboriginal right, such as a hunting or fishing right, the question would be to what degree would the project interfere with that ability to hunt or fish. In the case of claimed Aboriginal title, it is a bit more complex.

8/
Where Aboriginal title exists, the FN has broad rights to use that land in any way that does not destroy their relationship to that land. Thus, they are not restricted to “traditional” uses, although strip mining might be out of bounds.

9/
Aboriginal title is unlike any other form of title over land. The pretentious Latin term for this is “sui generis”. Some of the features of Aboriginal title are that it is communal and inalienable (except to then Crown).

10/
An issue raised with the Kitimat LNG project is who represents the Indigenous people. The project proponents state they have signed economic benefit agreements with every FN; all have consented to the project. The protestors state that they are not parties to the agreements.

11/
In particular, many hereditary chiefs do not support the project. It is worth noting here that the elected band councils exist because of the Indian Act. They are not necessarily reflective of how a FN would govern itself.

12/
There is *no* special rule that says any particular representative of the FN must be consulted. Aboriginal rights and title are held communally. Delgamuukw did *not* privilege the hereditary chiefs, nor did it say they should be ignored.

13/
When fulfilling the duty to consult, therefore, then Crown is consulting with the community. It is important that the concerns being raised are the concerns of the community. Choose your interlocutors with care.

14/
Did that happen here? All I can say is that no successful legal challenge was brought by the hereditary chiefs that the duty to consult was *not* fulfilled. And Delgamuukw has shown that hereditary chiefs have gone to court before.

15/
In our society, unanimity is a rare exception, especially in politics. We don’t all agree with all decisions made by our governments. Indigenous people are not some borg collective; like everyone else, there are different views.

16/
Some Wet’suwet’en support this project. Some do not. I cannot judge which side has more legitimacy; is more representative of the community. It does appear, however, that the legal duty was met in this case.

17/
That said, this project shows that there may be benefit in going above and beyond just fulfilling the legal duty. Who knows if things might have been different if the hereditary chiefs had been engaged in consultations. There are moral, if not legal, reasons to do better.

18/
Also, because we live in a democracy, we respect minority views. The protestors have a right to express their objections to the project. This includes the ability to use nonviolent protests, subject only to justifiable limits.

19/19
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