Wednesday, February 19, 2020

The Wet'suwet'en Take Ottawa to Court

Two Wet'suwet'en hereditary chiefs are suing the federal government for failing to adhere to its emissions targets under the Paris climate accords.

Mr. Naziel, who goes by the hereditary name Smogelgem, is head chief of Sun House, which is one of 13 Wet’suwet’en house groups. His uncle, Mr. Gagnon, goes by the hereditary name Kloum Khun under Owl House. 
Both house groups fall under the Laksamshu clan, which is one of five Wet’suwet’en clans.Mr. Naziel and Mr. Gagnon are the plaintiffs named on behalf of their house groups. 
“The defendant has deprived the plaintiffs of their right to equal protection and equal benefit of the law based on the age of the plaintiffs’ younger members and future generations by making laws that allow high GHG-emitting projects to operate now and into the future in breach of Canada’s fair contribution to keep global warming to non-catastrophic levels,” their court action said.
I have trouble thinking these chiefs will prevail. They may succeed, however, in shining a very unwelcome light on some important issues that this government would rather not discuss. That, in its own right, would be a victory.


Anonymous said...

I'm not so sure that the chiefs will fail, Mound. In Delgamuukw v British Columbia , Lamer CJC came to two conclusions regarding aboriginal title. First, that aboriginal title encompasses the right to use the land for a variety of purposes. And second, that land held under aboriginal title cannot be used in a manner that is irreconcilable with the nature of the attachment to the land.

He noted that "Implicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time... The relevance of the continuity of the relationship of an aboriginal community with its land here is that it applies not only to the past, but to the future as well. That relationship should not be prevented from continuing into the future" (paras. 126, 127).

I think there's a sound argument to be made that the government's woeful inaction on meeting its GHG commitments will inevitably prevent the Wet’suwet’en from continuing their relationship to the land in future.


The Disaffected Lib said...

I see your argument, Cap. Do you think our courts are disposed to go beyond something declaratory yet not binding? What sort of injunctive relief would be required to accommodate these plaintiffs? Why not join Saskatchewan, Alberta and British Columbia as party defendants?

I would be delighted if the chiefs prevail. Once again they would certainly be doing the heavy lifting for the rest of us.

Owen Gray said...

As the Brits say, this is a "sticky wicket."

The Disaffected Lib said...

It certainly has crystallized a lot of often overlooked issues, Owen, such as our lingering colonialism toward First Nations, the outright racism of many non-FNs including many in senior Tory ranks, the mutual support of those with overlapping interests including our youth, the environmentalists and social justice advocates. A lot of us are deeply indebted to our First Nations for doing the heavy lifting. If nothing else, many people have had their eyes opened to this "rule of law" business.

Anonymous said...

Lamer CJC set out aboriginal title in a way that would prevent the Wet’suwet’en elders from ruining the land for future generations, by strip-mining a hunting ground, for example. There is nothing similar in fee simple ownership of land. So if aboriginal title constrains the title-holder, shouldn't it also constrain the Crown which has a fiduciary duty that requires aboriginal title be given priority? If not, shouldn't the Wet’suwet’en be able to get an injunction against the government to prevent the destruction of their relationship to the land, in the same way that you could get an injunction against me if I were allowing pollution to flow from my land onto yours? At the very least, the decision requires the government to provide fair compensation if it infringes on aboriginal title.

I don't know the answer to this. The Delgamuukw decision itself illustrates the limited power of the Supreme Court. The Court punted the more difficult decisions down the road by ordering a new trial that never happened. It allowed the government to infringe on aboriginal title to develop agriculture, forestry, mining, hydroelectric power and so on, as long as there was meaningful consultation. It encouraged the BC and federal governments to negotiate in good faith, blind to the fact that it was bad faith negotiation that got the case there in the first place.

But the case predates the acceptance of reconciliation and UNDRIP, so who knows where the Courts will go. As you say, the case is likely to reveal issues governments would prefer to keep hidden. It could at least force some sort of accountability in a system rigged to hold nobody responsible.


The Disaffected Lib said...

A short time ago CBC reported that the feds will postpone their UNDRIP bill until "the troubles" with the Wet'suwet'en and eastern FNs are resolved. I'm not sure what message that's supposed to convey.

I have wondered, Cap, why JT didn't move to revive the Kelowna accord early in 2016. A lot of it was housekeeping stuff but it had a greater significance in that it was an exercise in genuine reconciliation. Paul Martin deserves a lot of credit for that. Harper, with the collaboration of Jack Layton, torpedoed it.

"A system rigged to hold nobody responsible." I've never heard it so aptly put. I may steal that line. Thank you.

I worked for a while at a Vancouver firm that had a terrific First Nations/environmental practice formerly headed by the late Dr. Andrew "Andy" Thompson. Did you ever hear of him. Did you ever hear of him? Really nice fellow.The West Coast Environmental Law group now has an award in Thompson's honour.

Anonymous said...

Thanks for mentioning Dr Thompson, I hadn't heard of him but looked him up. When I articled for a TO trial lawyer, I worked on an indigenous land claim in Northern Ontario that he'd taken on pro bono (it gave him an excuse to fly his airplane and allowed him to write off expenses). I spent a lot of time poring over microfilmed land surveys from the 1800s and other old documents in the provincial archives.

The experience really underlined what I'd noticed in law school - that the seemingly solid edifice of Canadian property and real estate law is really built on a shaky foundation. Treaties were broken and unceded lands taken. When FN people complain, they're told it's old history and they should just get over it. They're told to respect the "rule of law" that never respected them. The hypocrisy is nauseating and Canada doesn't deserve the heavy lifting our First Nations are doing on the environmental front. Maybe one day we'll appreciate the sacrifice.


The Disaffected Lib said...

I think we're back into one of those "two solitudes" situations, Cap, only this one is splitting what's now being called the "settler" population - i.e. white Canada, the non-FN majority.

Now FNs are clled "land defenders" but, in many ways, it's not just their lands being defended but the environment of the nation itself.

And I do agree that our tenure on this land is not as perfected as we might imagine. A classic example is the Musqueam lands in Vancouver. White folks built pretty swank homes on those lands in the 60s. It was leasehold but unduly cheap in rent. Then, after 50 years had passed, those leases expired and the FNs wanted fair market value rents. The residents were indignant that their FN landlords demanded what was really the going rate.

There are similar issues for a lot of the waterfront in Vancouver and the North Shore. That's the way it goes.

When BC negotiated entry into Confederation the colonial authorities demanded that Canada cede to the province jurisdiction over native land claims. The feds went along. The 'province' of BC then either ignored FN title rights or outright abused them. Negotiations were not a feature. And now we're saddled with this mess and the SCC must patch up the scars.

This scenario, however, plays into the conspiracy-fueled right, especially the far-right. To hear Andrew Scheer moan about FN "privilege" is truly bizarre yet his constituency buys it just as Trump's 'base' gleefully swallows every lie he feeds them.

It's been on my mind, Cap, that we may be witnessing the rise of social justice movements as the means to redress other open sores in our society - climate change, inequality, the assault on democracy. This (I hate this phrase) grassroots campaign for FN reconciliation could just offer a template for other overdue reforms that have languished, sometimes festered, during the neoliberal decades.

We're in need of some sort of pressure release valve and soon. Our societies are becoming deeply riven. The American disease is contagious. I came across a report on yesterday about the rise of a chilling far-right movement, the "boogaloo", that is promoting violent uprising in America.

It's a story of "cyber swarms and viral insurgency" that began online and now has metastasized into a street movement. Maybe that's where we're all headed. I hope not but who can rule that out?