By Ana Collins and Alex Neve
Any society, whether Canadian, British, or Wet’suwet’en, is made up of people who have shared territory, interaction, and culture; this doesn’t mean that members of a society will always agree with one another. A fundamental liberal democratic value is to honour and respect the right to disagree. The challenge in any society is how to reconcile differing opinions in order to live together well. Indigenous nations have historically been excluded from this social discussion in the Canadian state, and their traditional teachings and values have not merely been disregarded within social and political discourse but have been entirely supressed by the attempt to eradicate these other ways of being and thinking.
At the same time, all humans have rights, recognized through the UN system, and by Canadian constitutional law. Rights have also been articulated by Indigenous legal traditions for millennia, now formally recognized in the UN Declaration on the Rights of Indigenous Peoples. This is a human rights instrument that no country in the world opposes, and which, provincially and federally, Canadian colonial governments are attempting to understand and respect.
The Wet’suwet’en hereditary chiefs have maintained use of their lands and the traditional governance system in their territory. A Coastal GasLink pipeline has been approved by the federal and provincial governments despite lack of consent from the Peoples affected by the development project. The 670-kilometre pipeline would travel from the northeastern British Columbia gas fields to the Kitimat area, to supply the LNG Canada facility. Traditional legal systems and Canadian jurisprudence maintain that elected band councils only have legal jurisdiction over reserves created under the Indian Act — and not over traditional unceded territories.
The right of self-determination
There are many examples of Indigenous communities that disagree on economic and social development projects; nonetheless, it is not for settler Canadians to decide which of those opinions or decisions are right or wrong. Settler Canadians must respect the right of self-determination, one of the core principles of the UN Declaration, other international human rights instruments and decades of Canadian jurisprudence, including repeated decisions from the Supreme Court of Canada.
One important case that forms the base of the Canadian legal interpretation of title and consent is the Delgamuukw decision in 1997: a case brought to the Supreme Court by the Wet’suwet’en hereditary chiefs. In that decision, the court found that it was the authority of those hereditary chiefs to govern in their traditional territories. Individuals outside of a community may not understand traditional cultural, legal, and political practises, such as who holds hereditary leadership titles, how those are conferred, and why. However, the conflict in Wet’suwet’en territory is an opportunity to learn about those other ways of being that may seem new or strange.
Free, prior & informed consent
Regarding the current debate about land defense camps, the human rights position is clear: Indigenous Peoples have the right to free, prior and informed consent (FPIC) on any project that might affect their rights and the exercise of their rights. This process of consultation and consent cannot be only with a colonially imposed band governance system, nor can the consultation happen only with the traditional leadership. The UN Committee for the Elimination of Racial Discrimination (CERD) has been very clear in its most recent recommendations to Canada in December of last year: consultation must involve all members of a People. This is very important to consider in the Wet’suwet’en territory where the hereditary leadership have been recognized by Canada as the title holders.
Furthermore, the UN CERD has called on Canada to freeze present and future approval of large-scale projects until FPIC has been obtained, to cease forced eviction from traditional territories, to guarantee that no force will be used, and to withdraw policing and security forces from traditional territories, and other requirements.
Over the course of many years, the UN Committee has repeatedly and frequently highlighted serious shortcomings both with respect to specific decisions that have been reached in Canada without FPIC being obtained or in which consultations have been inadequate, and also as a matter requiring broad law and policy reform. These concerns have been consistently reflected in the UN CERD’s Concluding Observations, adopted in numerous reviews of Canada’s record of compliance with the country’s obligations under the UN Convention on the Elimination of All Forms of Racial Discrimination. It is imperative that Canadian governments act without delay to ensure full compliance with the Committee’s most recent ruling, deatling with Trans Mountain, Site C and Coast GasLink, in its entirety.
Why it’s crucial for Canada to comply with the UN Committee’s recommendations
It is crucial that Canada comply with this decision for two fundamental reasons. First and foremost, that action is urgently required because of the serious nature of the human rights violations at stake. Colonial governments across Canada have recognized that significant shifts are required to move forward with reconciliation with Indigenous peoples and show full regard for their rights in the Constitution and under international law. If promises to do so are not met with concrete action, including tough and challenging decisions such as those required here, then the words remain empty.
Secondly, compliance is so important in this instance as a means of demonstrating the strong regard that Canadian governments and the Canadian people have for the international human rights system. At a time when an increasing number of countries are actively undermining and flouting their international human rights obligations, it is more important than ever for countries like Canada to demonstrate a strong commitment to international human rights norms and institutions such as the UN CERD that have been entrusted by governments with responsibility for overseeing compliance with those norms.
Governments around the world often seek to justify their failure to live up to international human rights obligations by arguing that the cost of protecting rights is too high, insisting that there are already adequate national laws and processes in place to protect rights, or sacrificing the rights of one group (which in many countries is often Indigenous Peoples) because of the economic interests of others. Canada must not in any way echo those excuses, but instead demonstrate that we do indeed put human rights first and in doing so, expect other states to do similarly.
A call for observers
The Wet’suwet’en have issued a call for observers from Northern BC to support their land defence.