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Posted: February 23, 2020

Where’s commitment to free, prior and informed consent?

Letter to the Editor

As a former electoral area Director, with a jurisdiction that extended over nearly 5,800 sq. km, I have enormous empathy for the Hereditary Wet’suwet’en Chiefs. That 20 band councils signed benefits agreements with Coastal GasLink is totally irrelevant in determining the route of a pipeline on Wet’suwet’en Nation land.

At three square km the Village of Kaslo, for example, receives a grant-in-lieu of taxes from BC Hydro, even though it is wholly situated in the FortisBC service area. However, receiving those benefits does not give the Village administration the right or authority to discuss the ongoing impacts of Duncan Dam operations within Area D, as those issues are under the jurisdiction of the Director for Area D. So too are the issues of building the pipeline the responsibility and jurisdiction of each and every clan and house chief through whose land which Coastal GasLink proposes to construct their pipeline.

Beyond Chief Justice Lamer’s Canadian Supreme Court ruling, in Delgamukuuw vs British Columbia, that aboriginal title and rights in British Columbia have never been extinguished, the Court , while acknowledging crown rights, ruled in Tsilhqot’in (2014), at para 73, 74 and 76 that: “Aboriginal title confers ownership rights similar to those associated with fee simple, including:  the right to decide how the land will be used; the right of enjoyment and occupancy of the land;  the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.

“…it is collective title held not only for the present generation but for all succeeding generations…it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.

“…The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.  If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.”

Where, I ask, is Canada and British Columbia’s commitment to implement “free, prior and informed consent” with First Nations (especially when the Office of the Wet’suwete’en offered two alternate routes), when they refuse to acknowledge that there should be a pause in Coastal GasLink construction while nation-to-nation talks occur under s.35 of the Constitution.

For the Earth…

Andy Shadrack,


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