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Wet’suwet’en: Why Are Indigenous Rights Being Defined By An Energy Corporation? PDF Print E-mail
Justice News
Posted by Joan Russow   
Thursday, 13 February 2020 10:08

Yellowhead Institute generates critical policy perspectives in support of First Nation jurisdiction.

Wet’suwet’e

post by Shiri Pasternak 2020-02-07

In Treaties, Rights and Title

AN UNSIGNED AGREEMENT

 

between a Wet’suwet’en First Nation and Coastal GasLink along with financial documents obtained by Yellowhead Institute provide reinforcement to Yellowhead’s assessment of the ways these private contracts can dramatically undermine First Nation rights and jurisdiction.

The Impact and Benefit Agreement (IBA) and other documents were drafted in 2016, two years before the first payments were made to the First Nation. Because official agreements are not available to the public due to confidentiality clauses, these documents provide a valuable record of Coastal GasLink’s negotiating objectives.

In light of present RCMP raids, these documents provide important insights that support an emerging analysis around how resource extraction companies work with provinces to limit the scope of the Aboriginal and treaty rights.

One of the most alarming clauses in the document positions the band as paid informers to quell internal dissent within the First Nation against the project at the cost of “financial consideration” or payouts.

The document also introduces the possibility of future negotiations with the band on the pipeline’s conversion to crude oil.

Operating on unceded lands
The pipeline, a natural gas project by Coastal GasLink owned by TC Energy, has been approved by the B.C. government, but it is being opposed by Wet’suwet’en Nation hereditary leadership in the region.

It has been criticized by Amnesty InternationalB.C.’s Human Rights Commission and the UN Committee for the Elimination of Racial Discrimination who say all First Nations affected by the pipeline should give free, prior and informed consent before it can proceed.

Provincial and federal governments, industry and the First Nations LNG Alliance have responded to criticism about the contentious project by citing the consent of elected band councils along the route. Coastal GasLink has signed agreements with 20 First Nations, including with each band council in the Wet’suwet’en Nation.

But the terms of consent this unsigned agreement seek to secure should raise serious concern for those watching the conflict unfold.

Irrevocable consent
According to the IBA, Coastal GasLink aims to secure “irrevocable consent” for the project from the First Nation.

The First Nation must also act to dissuade band members from engaging in any internal dissent within the First Nation against the project. The unsigned agreement reads:

  • “[The First Nation] will not take, and will take all reasonable actions to persuade [First Nation] members to not take, any action, legal or otherwise, including any media or social media campaign, that may impede, hinder, frustrate, delay, stop or interfere with the Project’s contractors, any Authorizations or any Approval Processes.”

Experts on IBAs have been warning for years that serious issues can arise when commercial law is used to interpret Aboriginal constitutional rights. With these agreements, we now see how. The draft agreement states:

  • “[this is the] full and final satisfaction of any present or future claim by [the First Nation]… against Coastal Gaslink… for any infringement by the Project of [the First Nation’s] Section 35(1) Rights.”

The extent of constitutional Aboriginal rights is being defined here by a private energy corporation, specifically limiting the exercise of Aboriginal rights. A separate provision affirms that the band can take legal action against British Columbia.

Future protection is granted to Coastal GasLink in the case that Aboriginal rights are expanded to the nation through legal or policy means. The draft agreement states:

  • “If [the First Nation] obtains any interest in land including Aboriginal title or ownership or jurisdiction over lands used by the Project… [the First Nation] affirms the Authorizations … will continue” and that these changes will not affect the Agreement.

Dayna Nadine Scott, a law professor at York University, has interviewed lawyers with experience drafting IBAs for a research project, due out in the spring. She says this language is highly problematic and is often referred to as “gag orders,” preventing communities from raising concerns when new issues come to light.

Therefore, the unsigned agreement restricts the band from challenging any of the company’s legal rights of development, even in the case of changes to the First Nation’s legal rights, as recognised by courts or governments.

Possibility for natural gas to crude oil conversion?
The unsigned agreement also raises the issue of the possibility of converting the pipeline for other uses.

Previously, First Nations in the region were almost unanimously opposed to the Northern Gateway pipeline proposed by Enbridge, because it carried significant environmental risks, such as oil spills in coastal waters. Coastal GasLink garnered significantly more support, in part because of its pipeline would carry natural gas, not bitumen.

The unsigned agreement says: “Coastal GasLink will not convert the pipeline component of the project to use for transportation of crude oil, bitumen or dilbit without the consent of [First Nation].”

That line, “without the consent of First Nation,” means the subject of conversion was very likely raised in negotiations between the parties. The First Nation protected itself by confirming this change would require an amendment or a new agreement altogether to obtain consent for the change.

However, Wet’suwet’en Hereditary Chiefs who oppose the project have not consented and signed an agreement. Therefore, it remains to be seen if Wet’suwet’en Hereditary Chiefs who oppose the project would be afforded the same opportunity.

Though B.C. introduced a regulation in 2015 against the conversion of LNG pipelines, it has yet to be tested and could be repealed.

A once-shuttered energy corridor could re-emerge if the LNG pipeline is built. Hydrocarbons are Canada’s biggest export commodity, with $129 billion CAD in exports in 2018. Enbridge was unable to secure a corridor through the region previously, but TC Energy, the owner of Coastal GasLink, is aiming to succeed.

Subsidizing dispossession
LNG Canada is already subsidized by the province of B.C. for $5.35 billion. A further $1 billion in estimated subsidies will be provided by the federal government in exemptions from tariffs on steel imports.

The provincial funding arrangement puts B.C. Premier John Horgan in a conflict of interest with Wet’suwet’en hereditary governments opposing the project.

Horgan has expressed concern about First Nations experiencing “systemic poverty” and characterized the Coastal Gas Link investment into First Nations as “a pathway to prosperity,” according to recent statements in the press.

But a substantial amount of financial support to First Nations are derived from public coffers. Rather than alleviate “systemic poverty” in communities directly, the B.C. government is channelling these dollars through energy companies. Therefore, making First Nation funding contingent upon support for pipeline deals.

The summary of financial benefits obtained by Yellowhead shows that B.C. will put up $1 million to the band in signing payments, $5 million in construction and in-service payments, and an estimated $40 million total in annual operation payments over 40 years.

These numbers confirm amounts committed in a Natural Gas Benefits Agreement signed between the parties.

Raid
As the RCMP descend on Wet’suwet’en territory it is worthwhile to reflect on how social license is achieved by industry to access Indigenous territories.

The provincial government has downloaded its constitutional obligations to energy companies to determine the scope and assertion of Aboriginal rights.

A hand-in-glove system, the B.C. government has supported the current raids through financial incentives that have forced communities apart.

With upwards of $7 billion on the line in government subsidies, the interests of Coastal GasLink’s viability appears to have been put far ahead of Wet’suwet’en rights, title and justice.

This article originally appeared in The Conversation Canada

IMAGE CREDIT: Private sector development agreements can dramatically undermine First Nation rights and jurisdiction. Here the Wedzin kwa River an important source of fresh water for the Unist’ot’en and Wet’suwet’en people near Houston, B.C. THE CANADIAN PRESS/Chad Hipolito

AN UNSIGNED AGREEMENT between a Wet’suwet’en First Nation and Coastal GasLink along with financial documents obtained by Yellowhead Institute provide reinforcement to Yellowhead’s assessment of the ways these private contracts can dramatically undermine First Nation rights and jurisdiction.

The Impact and Benefit Agreement (IBA) and other documents were drafted in 2016, two years before the first payments were made to the First Nation. Because official agreements are not available to the public due to confidentiality clauses, these documents provide a valuable record of Coastal GasLink’s negotiating objectives.

In light of present RCMP raids, these documents provide important insights that support an emerging analysis around how resource extraction companies work with provinces to limit the scope of the Aboriginal and treaty rights.

One of the most alarming clauses in the document positions the band as paid informers to quell internal dissent within the First Nation against the project at the cost of “financial consideration” or payouts.

The document also introduces the possibility of future negotiations with the band on the pipeline’s conversion to crude oil.

Operating on unceded lands
The pipeline, a natural gas project by Coastal GasLink owned by TC Energy, has been approved by the B.C. government, but it is being opposed by Wet’suwet’en Nation hereditary leadership in the region.

It has been criticized by Amnesty InternationalB.C.’s Human Rights Commission and the UN Committee for the Elimination of Racial Discrimination who say all First Nations affected by the pipeline should give free, prior and informed consent before it can proceed.

Provincial and federal governments, industry and the First Nations LNG Alliance have responded to criticism about the contentious project by citing the consent of elected band councils along the route. Coastal GasLink has signed agreements with 20 First Nations, including with each band council in the Wet’suwet’en Nation.

But the terms of consent this unsigned agreement seek to secure should raise serious concern for those watching the conflict unfold.

Irrevocable consent
According to the IBA, Coastal GasLink aims to secure “irrevocable consent” for the project from the First Nation.

The First Nation must also act to dissuade band members from engaging in any internal dissent within the First Nation against the project. The unsigned agreement reads:

  • “[The First Nation] will not take, and will take all reasonable actions to persuade [First Nation] members to not take, any action, legal or otherwise, including any media or social media campaign, that may impede, hinder, frustrate, delay, stop or interfere with the Project’s contractors, any Authorizations or any Approval Processes.”

Experts on IBAs have been warning for years that serious issues can arise when commercial law is used to interpret Aboriginal constitutional rights. With these agreements, we now see how. The draft agreement states:

  • “[this is the] full and final satisfaction of any present or future claim by [the First Nation]… against Coastal Gaslink… for any infringement by the Project of [the First Nation’s] Section 35(1) Rights.”

The extent of constitutional Aboriginal rights is being defined here by a private energy corporation, specifically limiting the exercise of Aboriginal rights. A separate provision affirms that the band can take legal action against British Columbia.

Future protection is granted to Coastal GasLink in the case that Aboriginal rights are expanded to the nation through legal or policy means. The draft agreement states:

  • “If [the First Nation] obtains any interest in land including Aboriginal title or ownership or jurisdiction over lands used by the Project… [the First Nation] affirms the Authorizations … will continue” and that these changes will not affect the Agreement.

Dayna Nadine Scott, a law professor at York University, has interviewed lawyers with experience drafting IBAs for a research project, due out in the spring. She says this language is highly problematic and is often referred to as “gag orders,” preventing communities from raising concerns when new issues come to light.

Therefore, the unsigned agreement restricts the band from challenging any of the company’s legal rights of development, even in the case of changes to the First Nation’s legal rights, as recognised by courts or governments.

Possibility for natural gas to crude oil conversion?
The unsigned agreement also raises the issue of the possibility of converting the pipeline for other uses.

Previously, First Nations in the region were almost unanimously opposed to the Northern Gateway pipeline proposed by Enbridge, because it carried significant environmental risks, such as oil spills in coastal waters. Coastal GasLink garnered significantly more support, in part because of its pipeline would carry natural gas, not bitumen.

The unsigned agreement says: “Coastal GasLink will not convert the pipeline component of the project to use for transportation of crude oil, bitumen or dilbit without the consent of [First Nation].”

That line, “without the consent of First Nation,” means the subject of conversion was very likely raised in negotiations between the parties. The First Nation protected itself by confirming this change would require an amendment or a new agreement altogether to obtain consent for the change.

However, Wet’suwet’en Hereditary Chiefs who oppose the project have not consented and signed an agreement. Therefore, it remains to be seen if Wet’suwet’en Hereditary Chiefs who oppose the project would be afforded the same opportunity.

Though B.C. introduced a regulation in 2015 against the conversion of LNG pipelines, it has yet to be tested and could be repealed.

A once-shuttered energy corridor could re-emerge if the LNG pipeline is built. Hydrocarbons are Canada’s biggest export commodity, with $129 billion CAD in exports in 2018. Enbridge was unable to secure a corridor through the region previously, but TC Energy, the owner of Coastal GasLink, is aiming to succeed.

Subsidizing dispossession
LNG Canada is already subsidized by the province of B.C. for $5.35 billion. A further $1 billion in estimated subsidies will be provided by the federal government in exemptions from tariffs on steel imports.

The provincial funding arrangement puts B.C. Premier John Horgan in a conflict of interest with Wet’suwet’en hereditary governments opposing the project.

Horgan has expressed concern about First Nations experiencing “systemic poverty” and characterized the Coastal Gas Link investment into First Nations as “a pathway to prosperity,” according to recent statements in the press.

But a substantial amount of financial support to First Nations are derived from public coffers. Rather than alleviate “systemic poverty” in communities directly, the B.C. government is channelling these dollars through energy companies. Therefore, making First Nation funding contingent upon support for pipeline deals.

The summary of financial benefits obtained by Yellowhead shows that B.C. will put up $1 million to the band in signing payments, $5 million in construction and in-service payments, and an estimated $40 million total in annual operation payments over 40 years.

These numbers confirm amounts committed in a Natural Gas Benefits Agreement signed between the parties.

Raid
As the RCMP descend on Wet’suwet’en territory it is worthwhile to reflect on how social license is achieved by industry to access Indigenous territories.

The provincial government has downloaded its constitutional obligations to energy companies to determine the scope and assertion of Aboriginal rights.

A hand-in-glove system, the B.C. government has supported the current raids through financial incentives that have forced communities apart.

With upwards of $7 billion on the line in government subsidies, the interests of Coastal GasLink’s viability appears to have been put far ahead of Wet’suwet’en rights, title and justice.

This article originally appeared in The Conversation Canada

IMAGE CREDIT: Private sector development agreements can dramatically undermine First Nation rights and jurisdiction. Here the Wedzin kwa River an important source of fresh water for the Unist’ot’en and Wet’suwet’en people near Houston, B.C. THE CANADIAN PRESS/Chad Hipolito

Last Updated on Wednesday, 19 February 2020 22:56
 
They stole the Children from the Land Now They Steal the Land from the Children PDF Print E-mail
Justice News
Posted by Joan Russow   
Monday, 10 February 2020 08:49

image.png

The Court erred in granting an injunction 

1.    AN INJUNCTION IS AN EQUITABLE REMEDY

AN INJUNCTION IS AN EQUITABLE REMEDY. THE EXERCISE OF THE EQUITABLE JURISDICTION IS NOT TO BE RESTRICTED BY THE STRAITJACKET OF RIGID RULES BUT IS TO BE BASED ON BROAD PRINCIPLES OF JUSTICE AND CONVENIENCE, EQUITY REGARDING THE SUBSTANCE AND NOT MERELY THE FACADE OR THE SHADOW. IT MOVES WITH TIME AND CIRCUMSTANCES. (1991 BC JUSTICE J.A. NORRIS)

A. TIME AND CIRCUMSTANCES HAVE CHANGED SINCE 1991 AFTER UN CONFERENCE ON ENVIRONMENT AND THE DEVELOPMENT (UNCED)

(i) in 1992, Canada signed and in 1993, ratified  the legally binding UN Framework Convention on Climate Change 

whose objective is 

 

article 2, the ultimate objective the UNFCCC convention and any related legal instruments that the conference of the parties may adopt is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system;

Last Updated on Monday, 10 February 2020 09:03
Read more...
 
B.C. landowners dig in their heels over Trans Mountain pipeline construction PDF Print E-mail
Justice News
Posted by Joan Russow   
Wednesday, 11 September 2019 13:13
 
“It’s caused me emotional devastation. They are killing me through stress and legal fees.”
 
LAURA KANE, THE CANADIAN PRESS Updated: September 10, 2019
 
 
Barbara Gard calls her three-hectare property, nestled below the forested peak of Sumas Mountain, a “miniature Stanley Park.” Its lush trees and flowing creek reminded her of Vancouver’s majestic park, and she immediately knew she wanted to call it home.
 
But she said her peaceful retreat in Abbotsford now feels more like a nightmare. Gard is among thousands of landowners along the Trans Mountain pipeline expansion route who have not yet granted the Crown corporation access to their property, and she said her dealings with the project’s owners over the years have shattered her mental health.
 
“It’s caused me emotional devastation,” said Gard, a 64-year-old school psychologist on medical leave from work. “They are killing me through stress and legal fees.”
 
Numerous hurdles remain before significant construction can begin on the massive project. Trans Mountain Corp. has not signed agreements with 33 per cent of landowners, no part of the detailed route has been approved, about half of the necessary permits are outstanding and it must meet dozens of conditions with the Canada Energy Regulator, formerly the National Energy Board.
 
Further, it faces resistance in southwest B.C., where landowners are digging in their heels, Indigenous groups are filing legal challenges and protesters are planning to ramp up activity.
 
The federal Liberal government bought the pipeline for $4.5 billion last year. The parliamentary budget officer has said that if the expansion is not complete by the end of 2021, it would be fair to conclude the government overpaid for the asset.
Last Updated on Wednesday, 11 September 2019 13:28
Read more...
 
Ottawa’s Wood Buffalo plan ‘not good enough’: First Nations PDF Print E-mail
Justice News
Posted by Joan Russow   
Tuesday, 12 February 2019 20:47
 
Canada’s largest national park is at risk of losing its status as a World Heritage site due to the impacts of dams, oil development and climate change
 
Judith Lavoie Feb 7, 2019 
 
https://thenarwhal.ca/ottawas-wood-buffalo-plan-not-good-enough-first-nations/?fbclid=IwAR34CIc9xuURU8rqlXU5HE_nrIIj4oCkgBU-Q_RMTkA_QMKllV93_gBoo2
 
 
 
The federal government is promising to create artificial ice jams, strategically release water from BC Hydro dams and assess cumulative impacts on northern Alberta’s Peace-Athabasca delta in an attempt to retain the World Heritage status of Canada’s largest national park.
 
 
 
However, Ottawa’s long-awaited action plan for Wood Buffalo National Park rejects a World Heritage Committee recommendation calling on Canada to  conduct an environmental and social impact assessment of the controversial Site C dam. The action plan says the federal government’s hands are tied because an assessment of the project was completed by a federal-provincial review panel before the dam was approved in 2014.
Last Updated on Saturday, 16 February 2019 08:39
Read more...
 
Rachel LaFortune: "Rule of law" is not a justification for colonial violence in Wet'suwet'en pipeline dispute PDF Print E-mail
Justice News
Posted by Joan Russow   
Friday, 08 February 2019 13:03
 
BY Rachel LaFortaine
https://www.straight.com/news/1196861/rachel-lafortune-rule-law-not-justification-colonial-violence
 
by Guest on February 4th, 2019 at 5:06 PM

By Rachel LaFortune

 
 
SUB.MEDIA SCREEN SHOT
By Rachel LaFortune
 
RELATED STORIES
Tensions rise over pipeline project following truce between Wet'suwet'en hereditary chiefs and RCMP
David Suzuki: Pipeline blockade is a sign of deeper troubles
RCMP arrest 14 anti-pipeline activists at Gitdumt'en checkpoint on Wet'suwet'en territory
Showdown expected in northwestern B.C. between RCMP and Indigenous protesters over pipeline project
When governments rely on court-granted injunctions to define the “rule of law” in respect to Indigenous land occupations, they risk breaching their Constitutional and international human-rights obligations and undermining any chance at meaningful reconciliation.
 
Case in point: the injunction currently being enforced against Wet’suwet’en land and water defenders in British Columbia.
Last Updated on Friday, 08 February 2019 13:28
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