Front Burner - Tensions swell on Wet'suwet'en territory

Episode Date: November 23, 2021

Yesterday, demonstrators and journalists appeared in a northern B.C. court after spending the weekend in jail for their presence at a resistance camp in Wet’suwet’en territory. The RCMP arrested dozens of people and cleared the camp last week. It had been blockading a key work site for the Coastal GasLink pipeline project. Hundreds of workers had been stranded after the blockade was erected. The police were enforcing an injunction from a civil court that said Coastal GasLink should be able to continue its work. Today, attorney Kris Statnyk explains that the legal battle happening over the land is incredibly complex, because even the Canadian legal system holds contradictory positions on this issue. And the Tyee’s northern B.C. reporter Amanda Follett Hosgood explains what’s been happening on the front lines.

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You are in civil contention of a court order and be arrested. Do you understand? There's an elder here. There's an elder. You're under arrest. You're under arrest. I'm media. You're under arrest.

I am media. After nearly two years of relative calm, things are heating up again in Wet'suwet'en territory in northern BC. The RCMP has arrested dozens of people and cleared a resistance camp that was occupying a key work site for the Coastal GasLink Pipeline Project. Roads closed, roads closed, man, no matter what you say. So we're here from Coastal GasLink Project. We are here to conduct work on behalf of the Coastal GasLink Project and you're impeding us. Can you please move your blockade out of the area? Nothing to say. We have a court abduction. And like the last time the RCMP

conducted raids in Wet'suwet'en territory. We're now seeing solidarity actions across Canada. Today, the latest in the ongoing Wet'suwet'en conflict and the complicated legal questions surrounding it. My first guest is Amanda Follett-Hosgood. She's a Northern BC reporter for the Ta'i and she's been covering this story for a long time. Hi, Amanda. Good morning, Angela. Thanks so much for being here today and taking us through this story that you've been covering for so long. And, you know, many listeners may remember the first time that the RCMP invaded a checkpoint camp in Wet'suwet'en territory. That was back in

January 2019. They were enforcing a Supreme Court injunction granted to the natural gas pipeline company Coastal Gas Link. And then there were similar RCMP raids in February 2020. News of those arrests sparked another protest through downtown Vancouver this afternoon. One of many across the province. At the time, this was probably one of the biggest stories in the country. But then it kind of faded from the headlines until about a week ago. So can you tell me what's been happening, you know, the time when the conflict wasn't necessarily front page? Yeah, so after February 2020, right around the end of February, early

March, the Wet'suwet'en hereditary chiefs came to an agreement with provincial and federal governments to move ahead with implementing rights and title and to restart that process where the Delgamook Court decision left off. After four days of meetings, some success. A proposal recognizing the rights of Wet'suwet'en hereditary leaders over their traditional territory. That it is about the nation coming together to make sure that their traditional laws and customs and legal orders are honoured. And then, of course, the pandemic struck a couple of weeks later and people were still staying in camps out on the territory, but they were very strict about having visitors or anybody going out there.

And RCMP continued to patrol the Maurice Forest Service Road. That hasn't stopped since January 2019, but it was overall quite quiet up until about late September of this year. And what do we know about what was happening in September on the ground in Wet'suwet'en Territory? in Wet'suwet'en territory? Yeah, so in September, there was growing concern amongst the land defenders and the Wet'suwet'en hereditary chiefs about Coastal GasLink's plan to drill under the Maurice River, the Wet'sinkwa to the Wet'suwet'en. And so in late September, land defenders took Coastal GasLink's machinery, land defenders took coastal gas links machinery um kind of commandeered it and dug a trench through a road that's it's sort of a side road and it leads down to a site where the company

planned to drill under the maurice so they blocked that road by trenching through it they dropped some trees on the road and they had a big school bus that they parked in the middle of the road just to block access. And how did the police respond to that? When did they start responding to that? So the first few days to a week, there were sort of police would show up and they would talk to people. They did make a couple of arrests. Somebody had chained themselves underneath a bus and they were arrested. Another person was arrested while operating the Coastal GasLink machinery. But for the most part, things were fairly quiet for those first, really for the last couple of months up until Sunday.

Right. And before we move on, I'll just note that on September 28th, Coastal GasLink released a statement about the plan to drill under the Maurice River, the Wedsinkwa River, that said that the microtunneling method that they would use would happen way disturb the river or its banks. And they said, quote, micro tunneling was determined to be the safest and most environmentally responsible method, end quote. But regardless, it sounds like there's been some back and forth and arrest here and there. But then things really heated up on Sunday, November 14th. Can you tell me what happened then? on Sunday, November 14th. Can you tell me what happened then? Chief Wass, who is clan chief for the Giddemden clan of the Wet'suwet'en, asked the land defenders to close the road. I would like to offer some good conscience here. We're open to a dialogue, not something that we've seen back in February 2020 and then 2019. They decommissioned the Maurice Forest Service Road using Coastal GasLink's heavy machinery.

So they trenched through the road at a few locations. They dropped some trees. There were vehicles placed on the road blocking access. So that happened mid-afternoon on Sunday. It's worth noting, too, that they had given Coastal GasLink a heads-up on this. This is an immediate evacuation order for all Coastal GasLink employees and subcontractors. You will not be permitted to enter the territory past 30 kilometers. You have eight hours to vacate the territory peacefully.

Failure to comply will result in immediate road closure of Morris Forest Service Road and Morris West Forest Service Road. And I'm told that they were given eight to ten hours to evacuate their workers who were staying in two work camps located way down that remote road. But that didn't happen. And by three o'clock, when the land defenders weren't seeing people leave the area, they decided to go ahead with the eviction and the closure. And so there were 500 workers and only limited supplies. I think that there was only maybe a couple of days of supplies left by the time the RCMP went in on Thursday.

And then on Thursday, last Thursday, RCMP went in to clear the blockade and you were there that day reporting. Can you describe what you saw and how that day unfolded? What I was told by officers there is that their mission was to get the road open and get supplies into that camp. And they would simply arrest anybody who was in their way. So at about 1030, 15 people were taken into custody at Gidham Den Camp, which is about 44 kilometers down the Maurice Forest Service Road. And I arrived at the checkpoint. Initially, they weren't going to let me in. When I dug in my heels and asked them to give me access, they did allow me to go in with a police escort. And we arrived at 44 kilometer just as they were processing the people that had just been arrested. RCMP arrested a journalist.

Melissa Cox is a documentary filmmaker who was among the first to be arrested as she was recording those arrests. And she was released the same day. Melissa and I were both at Unist'ot'en Healing Center in February 2020 when the arrest took place there. So I know her. I know who she is. I know that she's a filmmaker. And I looked behind me and I was just shocked to see her standing there. She was literally holding her press card in front of her face as the RCMP officer was taking her information to arrest her.

Wow. And then I guess on top of those arrested on Thursday, there were more arrests on Friday, including two more journalists. Can you tell us who was arrested and what you've been able to sort out about what happened that day? Yeah, so on Friday, by Thursday evening, that road into the camps was open, supplies were flowing. But what remained was this blockage, this camp on the side road that led into the coastal gas link work site. And so on Friday, people who were at that site, the land offenders in there, were tweeting, posting on social media that RCMP were on their way in. And at 12.40, the last tweet that went out from the Gidham Den social media account was that RCMP were trying to break down the door of a small cabin at that site with an axe, and they had police dogs and they were coming in with their guns pointed at

the land defenders. And then everything went dark. We don't know much of what happened after that because two journalists that were inside that cabin have been detained since Friday afternoon. Photo journalist Amber Bracken and documentarian Michael Toledano were both arrested for breach of an injunction after Wet'suwet'en members and supporters blockaded... We don't know where the footage is, we don't know where the photos are. So it's really hard to know what took place other than we have a statement from the RCMP. Wow. And so the people detained that day,

including the two journalists, were transferred four hours away to Prince George. We're speaking Monday morning BC time. So a bit later today, I understand you'll be reporting on a bail hearing for those detainees. So we'll include updates about that in our extra. But for now, I want to end, I guess, by talking a little bit more about those journalists. And I just want to acknowledge here that we're talking about the journalists, and I don't want to suggest that their rights are more important than the Wet'suwet'en land defenders and their supporters. But I think it's important to talk about press freedom here.

So firstly, what has the RCMP said about why they arrested these two journalists and why they've kept them detained for three days now? My understanding is their legal grounds for detaining them is they believe they were embedded in the camps, which is what journalists do, of course, right? Like the best way to tell a story is to be there and be a part of it and to understand the situation and understand the people who are a part of it. So it'll be interesting to see how

that argument from the RCMP actually holds up. And what does the detention of these journalists say to you? Well, it's kind of an ominous message to journalists. I mean, I've definitely spent the last three nights lying awake, thinking about them detained somewhere and their freedoms taken away. detained somewhere and their freedoms taken away. And it affects all of the Canadian public who deserve to hear these stories and deserve to know what happened on the ground because we're missing a huge piece of that picture. Amanda, thank you so much for being here and for continuing to report on this really important story. Thanks so much, Angela. It's really nice to chat with you. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem.

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To listen to this podcast, just search for Money for Couples. All right, now I want to turn to talking about some of the complex legal questions surrounding this story because according to some experts, when you start asking which laws and whose laws apply here, you get a pretty contradictory picture. I'm speaking now to Chris Statnik. He's a lawyer and a member of the Vuntut Gwich'in First Nation, and he's currently living in my Gitsan Nation's territory right beside Wet'suwet'en territory. So he's been following this issue really closely. Hello, Chris.

Hello, Angela. So as we've noted, this is the third time that the RCMP has launched operations on this road, in this territory, against hereditary chiefs, land defenders, and their supporters. I mean, in simple terms, what is the legal basis for them to conduct these raids? Yeah, the legal basis that the RCMP is relying on to conduct these militized police raids on whatsoever entitlement rights holders and their supporters is an injunction order obtained by Coastal Gas Link or CGL from the BC Supreme Court as part of a civil or private lawsuit brought by the Plekbaline Corporation. It creates these, I would say, quasi-criminal offences that prohibit Watsowetan House members

from carrying out certain activities in huge swaths of their house territories. And I say these are quasi criminal offenses because when the RCMP enforces a civil or private law injunction like this on behalf of the private sector to forcibly remove Indigenous people from their territories, they're not doing so on the basis of sort of any criminal or regulatory offence

that is being alleged to being committed under Canadian law. Instead, what they are basing the arrests and enforcement on is the court's order and arresting people for allegedly being sort of in contempt or breach of that court's order. And to be clear, the RCMP is enforcing this injunction requested by the company, not the Canadian government. Is that right? That's correct. And, you know, in speaking with some of the lawyers involved in that injunction hearing, they've told me that, you know, these injunctions are, you know, in their sense, they're supposed to be sort of interim until the full sort of private lawsuit can be heard. You know, this lawsuit that Coastal GasLink initiated in order to go get this

interim injunction order, what's supposed to be an interim injunction order. The lawyers have told me that since that was obtained three years ago, that Coastal GasLink hasn't taken any steps to actually address the underlying issues at a trial, which would be a venue where Wet'suwet'en would be able to introduce evidence of their own law and proof of their title into the areas they're being removed from. So you sit on the board of this, the Indigenous-led research centre, also known as an Indigenous think tank, the Yellowhead Institute. And I know they've studied this topic a lot. What have they found about the use of injunctions against First Nations groups opposing resource development projects and how common they are?

Yeah, so there was a 2019 research study done by Yellowhead Institute. And, you know, what that study revealed is that, you know, that the use of injunctions is sort of increasingly the most prominent legal tool being used to remove Indigenous peoples or quell their opposition to natural resource development projects. And specifically, you know, the study found that 76% of injunctions that were filed against First Nations by private corporations, like the case here with Coastal GasLink, that 76% of those injunctions were granted. On the other side, or on the flip side, 81% of injunctions which First Nations sought against private corporations were denied. And I mean, I don't think a lot of people are aware of that, you know, that,

as you say, injunctions are the most prominent legal tool used to trigger police action against First Nations opposition to resource development projects. And so I want to talk now about why there's some experts that say the use of this one Canadian legal tool in these cases, injunctions, contradicts other Canadian laws, starting with this big one, this big precedent setting 1997 legal decision known, of course, as the Dalgamaugh. And I should say here, just to be transparent, this case involved members of my Gitxsan Nation, in addition to the members of the Wet'suwet'en Nation. And also some of my Gitxsan family members were expert witnesses in the Dalgama'w. And for our listeners, FrontBurner did a whole episode on the Dalgama'w back in February 2020 with CBC journalist Duncan McHugh. You can search that back in your feeds. But Chris, just very briefly, I mean, what were the key points in the Dalgama'w decision that relate to this current conflict in Wet'suwet'en territory?

Yeah, so just very briefly, one, Wet'suwet'en Gitxsan title and rights are inherent, meaning that they're based on the pre-existing sovereignty laws and hereditary system of governance of these nations. It also said that Canadian sovereignty and laws never extinguished those pre-existing title and rights, and that the Gitxsan and Wet'suwet'en have never agreed to cede or surrender those title and rights, including the right to govern and manage the land. Right. And I want to underline here what the legal justification was for granting this 2019 injunction to Coastal GasLink. BC Supreme Court Justice Marguerite Church wrote, quote, the defendants may genuinely believe in their rights under Indigenous law to prevent the plaintiff from entering dark house territory. That's referring to a hereditary house, a Wet'suwet'en hereditary house group.

But that, quote, the law does not recognize any right to blockade and obstruct the plaintiff from pursuing lawfully authorized activities, end quote. I'm wondering what your personal legal perspective is in this ruling in light of the Delgamook decision. Yeah, in my view of, you know, this is the consequence of, you know, sort of what we've been talking about at the court in these injunction proceedings, not getting into these underlying issues, which would be dealt with at a trial. This is the court essentially entirely ignoring the Wet'suwet'en legal perspective, which, you know, as I mentioned, was detailed by Wet'suwet'en and Gitxsan in their trial in Delgamuk decades ago. One of the other pieces of Canadian law that's been saying this exact same thing, Indigenous people have the right to have their Indigenous laws laws recognized is the UN Declaration on the Rights of Indigenous Peoples. BC became the first province to enshrine that declaration into law

in 2019. Canada passed a federal UNDRIP law in June of this year. So how does that come into play here? And how does it relate to the injunction granted to Coastal Gas Link? Well, you know, I think that's a really important question. And, you know, I think it's primarily for the governments who said that they're committed to upholding those, you know, the United Nations Declaration to answer. But, you know, UNDRIP is an international human rights instrument, and it's grounded in the right of Indigenous peoples to self-determination. And UNDRIP is very clear on a few things that, you know, free prior informed consent from the proper title and rights holders is required. And that standard is well understood internationally as, you know, being including the right to say no. And it also clearly identifies that the forced removal of Indigenous peoples from their territories are human rights violations.

Theoretically, could Wet'suwet'en hereditary chiefs use UNDRIP as a tool to, say, take the federal government or a coastal gas link to court? I mean, is that even possible? It's certainly a tool, but, you know, I think the situation reflects, you know, some of the, like I was saying, structural limits of law, you know, and, you know, when I hear, you know, with Zohran and Gitsan, title and rights holders speak from their perspective, they've already been to the Supreme Court of Canada, and that these issues aren't for the Canadian courts to resolve, that it's really through good faith political negotiation between equals where these issues may get resolved.

From your point of view, you know, we're seeing this dispute on Wet'suwet'en territory. It's clearly not going away anytime soon. I know that there's many layers to it, but I'm wondering if you feel that there's any, I don't know if it's a legal tool or some sort of change that you would like to see or that you can foresee that might help lead the ways towards a resolution here. Yeah. So, you know, I'll reiterate what I say, but, you know, I think there are actually real limits to what Canadian law can achieve here. But in terms of sort of legal reforms that may create the space for necessary dialogue, you know, in my view, we need to make it illegal for private companies to

continue to use these civil injunctions in the way they do. It is, in my eyes, a perversion of justice, and it leads to these militarized, unnecessary police raids where Indigenous peoples are criminalized. And in my view, any federal or provincial legislature, person elected to the legislature or parliament who does not condone what we are seeing happen over and over, that they should be seeking to make legislation and change the law. Otherwise, this project of reconciliation is a failure. And we're just going to continue to see this over and over and over and over again. Chris, Amia, thank you so much for this.

Osichu for having me. Before we go today, a few updates from the bail hearing that happened on Monday afternoon in Prince George for a number of people who were arrested in Wet'suwet'en territory last week. The first to be released was Cody Merriman. He's the husband of Slato Molly Wickham, who is one of the most prominent Wet'suwet'en voices opposing the pipeline. Here's what Cody had to say. CGL is in the process right now of trying to weaponize the injunction against Indigenous people. And I'd just like to let the people out there know and think about that. Even the Indigenous people working for the project, is it worth three years of jobs for a corporation to be able to strip indigenous rights away forever? As of Monday evening, Slato has not yet been released.

Photojournalist Amber Bracken, who was on assignment for the Narwhal, was released after agreeing to comply with the terms of the injunction and has a court date set for the next year. And filmmaker Michael Toledano has been released on similar terms. A Coastal GasLink lawyer said that, unlike most of the others arrested, the two journalists will be allowed to go back to the injunction exclusion zone because they have, quote, a justified reason to go back. That's all for today. I'm Angela Starrett filling in for Jamie Poisson. And if this episode was meaningful to you, please give us a rating and leave a review on your podcast app.

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