By Trevor Jang for Discourse Media.

Opponents of a massive liquefied natural gas project proposed for the north coast of B.C. have dug up a scientific report that band members were never shown.

In January of this year the Lax Kw’alaams Band signed an impact benefit agreement worth approximately $1 billion over 40 years in exchange for support for the $36 billion Pacific Northwest LNG project. But documents filed in federal court last month show the band council suppressed scientific research it had commissioned when the research report did not support the band’s position on the project. Members of the Gitwilgyoots Tribe, who filed the documents, are also arguing the band has no authority to approve the project.

“I don’t believe that they’re very ethical with the way that they’re doing things,” Murray Smith, a spokesperson for the Gitwilgyoots, tells me. “Why won’t [they] show us [the report]? Because it would work against them.”

The Gitwilgyoots launched their court challenge last October to have the federal government’s approval of the LNG facility overturned. Then in March, the Lax Kw’alaams Band filed a response to have the tribe’s challenge overturned.

Pacific Northwest LNG has been controversial because of its proposed location on Lelu Island near Prince Rupert. The island sits next to a sandbar called Flora Bank, which contains tall eelgrass that protects juvenile salmon as they adjust from the fresh water of the Skeena River to the salt water of the Pacific Ocean. Opponents of the project fear it will cause devastating impacts to the nursing grounds of millions of salmon and other species.

The report suppressed by the Lax Kw’alaams Band says the location of the project is a key concern. It was written by Asit Mazumder, a professor in the Department of Biology at the University of Victoria. According to court documents, Mazumder was contracted by the band in the spring of last year to conduct an independent review of the project’s risk to fish and fish habitat in the Skeena River estuary.

Mazumder has not responded to requests for comment. But his report concluded that the research paid for by Pacific Northwest LNG, which informed the federal government leading up to Ottawa’s approval of the project, was “inconsistent.” It said the company’s modelling assumptions and lack of baseline data “make it difficult to conclude the project is at a low risk of significantly impacting Flora Bank.”

Mazumder wrote that the purpose of his report was to help Lax Kw’alaams band members “come to an informed judgement as to the likely safety of the project.” Lax Kw’alaams Mayor John Helin did not respond to requests for comment, but on April 21st he testified in a cross-examination that he didn’t share Mazumder’s report with the community. “I felt the road that he was going down was not an objective or independent review of all the necessary information that was out there,” Helin testified.  

"An Extremely Sad Experience for the Scientists"

Professor Mazumder’s was not the only science to be suppressed in the months leading up to the approval of the project. Geologist Patrick McLaren is President of SedTrend, an independent consulting firm specializing in sediment trend analysis. McLaren was hired by the Lax Kw’alaams Band in 2015 to evaluate the environmental effects of terminal development over Flora Bank.

His research concluded plans for development would have a disruptive effect on Flora Bank, and that the sediments there are ancient and irreplaceable. Then last September, just weeks before the federal government approved Pacific Northwest LNG, McLaren was served a cease and desist letter from the band warning him to stop “making references to any research, information, or other matters relating to our about your work with the Lax Kw’alaams Band.

“All of a sudden Dr. McLaren’s analysis disappeared. They never showed it again,” Smith recalls.

The letter came after McLaren wrote a memo to band members last July summarizing his concerns. This memo was read out at a community meeting in which members accused the band of spreading misinformation. McLaren says he was asked by concerned band members to write the memo, and that he was not allowed to attend the community meeting himself.

“It was an extremely sad experience for the scientists. I think we were all very distressed,” McLaren tells me in a recent interview.

The band’s letter called McLaren’s memo to band members “egregious” because it “appears to be clearly aimed at swaying the membership’s opinion.” The letter also accused McLaren of breaching his confidentiality provision in his contract with the band by writing the memo. McLaren argues he could speak out because his research was made public when it was submitted to the Canadian Environmental Assessment Agency.

“All the science that had been done had been published in international literature with people that have got nothing to do with Lax Kw’alaams, nothing to do with Flora Bank, only to do with assessing whether the scientific method and the results were reasonable. And if they weren’t, there wouldn’t have been [any] hope of having that published,” says McLaren.

The letter warned McLaren not to share or refer to any of his previous work done for the band publicly, adding that if he did, the band would take steps against him.

Suppressed Science Report Questioned Location of #PNWLNG Plant https://t.co/Cwr84uUGHR #cdnpoli #bcpoli @SkeenaWild @SkeenaWatershed pic.twitter.com/eMbWjmzf7r

— DeSmog Canada (@DeSmogCanada) June 8, 2017

Battle over Lelu Island continues

Mazumder’s report and the letter to McLaren were submitted as evidence in the ongoing legal battle to stop Pacific Northwest LNG. The submissions on behalf of the hereditary leaders of the Gitwilgyoots Tribe accuse the Lax Kwa’laams Band of “producing decision-based evidence rather than evidence-based decisions.”

The Gitwilgyoots are attempting to have the federal government’s approval of the project overturned, on the claim that the tribe and its hereditary leaders were not adequately consulted. The tribe claims Lelu Island and the surrounding area as its traditional territory.

But the Lax Kw’alaams Band also claims jurisdiction over Lelu Island and is attempting to have the tribe’s court challenge dismissed. The band is arguing that the tribe, which represents the hereditary governance system of the Lax Kw’alaams and broader Coast Tsimshian people, is not a legal entity and therefore did not need to be consulted.

The outcome of the case could have broad implications for the question of who can speak for First Nations: hereditary chiefs or the elected council of federally administered Indian Act bands.

The two sides return to federal court June 7 and 8 in Vancouver.

Image: Juvenile salmon in the Skeena estuary. Photo: Tavish Campbell

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

This investigation was reported by Trevor Jang for Discourse Media. It is the second part of an ongoing investigation into how government negotiates with First Nations for major resource development projects.

Nestled in the forests of northwestern British Columbia, Richard Wright hauls a 30-pound moose chest out of a smokehouse. He shot the animal a few days ago, just a few kilometres north of camp.

“You want your wood to smoulder, not flame or get too warm. So you either get some alder or some cottonwood, which changes the flavour that you’re adding to the meat,” Wright says, after placing the chest in the back of his trunk, followed by the legs, rump, backbone and spine.

Wright is preserving food in the way the Gitxsan people here have for many generations. The act also has a deeper purpose; this camp, where he and others are living off the land for the past two years, is a form of protest, an occupation of a sort.

The Madii Lii camp, which includes a cabin, smokehouse, greenhouse and garden, strategically blocks the path of the proposed Prince Rupert Gas Transmission (PRGT) pipeline. The 900-kilometre pipeline is proposed to carry natural gas from northeastern British Columbia to the Pacific NorthWest LNG (PNW LNG) export terminal proposed for Lelu Island on the province’s north coast.

Wright is a member of the Luutkudziiwus, a traditional “wilp,” or house group, of the Gitxsan Nation. The nation is made up of more than 50 wilps, organized into four clans. The wilp is the central and most important social unit in Gitxsan culture. But these traditional wilp groups aren’t just symbolic — they carry political and legal weight too. Led by a hereditary chief, each group has authority over a specific chunk of “lax yip,” or traditional territory.

Wright is opposed to the LNG pipeline because he’s concerned about the environment, especially the risks the project poses to the region’s salmon population. But not all First Nations or Gitxsan people are against the project.

In the fall of 2016, a small group of Gitxsan hereditary chiefs secretly signed an agreement approving the project on behalf of the entire Gitxsan Nation. The group is made up of chiefs whose lax yip is directly crossed by the proposed pipeline route. They accepted millions of dollars in exchange for their support of the project. Since the deal was made public when documentation was leaked to the community late last year, the chiefs have stated publicly and in interviews that the money would help support development in a region plagued with unemployment and poverty.

Wright’s main concern is that a man named Gordon Sebastian signed as a hereditary chief on behalf of the Luutkudziiwus wilp. Wright claims Sebastian did so without consulting the wilp members. He also says Sebastian shouldn’t have been signing in the first place because he’s not their chief at all. Wright is now attempting to stop the project in court. He says the provincial government and PRGT have been negotiating with the wrong people and sparking conflict in the community.

Internal conflict over who has the authority to speak for the entire nation when it comes to considering resource deals is not unique to the Gitxsan. Some critics say that the B.C. government, which has a legal obligation to consult First Nations when developing deals, fuels and benefits from internal division by negotiating behind closed doors only with those individuals who are likely to say yes. They argue that the government appears afraid to seek informed consent from the nation through a consultation process that is inclusive of all members.

How this conflict unfolds will not only influence the fate of one major LNG project — it could forever impact the way the Gitxsan Nation governs itself.

Traditional Values Versus Economic Needs

Wright and Sebastian agree on at least one thing. Many Gitxsan people live in poverty. According to a report from the Gitxsan Treaty Society (GTS), unemployment rates on Gitxsan reserves are between 60 and 90 per cent. For Sebastian, executive director of the GTS, addressing this immediate economic need trumps the potential environmental risks of the LNG project.

“We have people 50, 60 years old that are still living with their parents. They’re pretty hard to employ. They have a hard time passing basic little exams to determine whether or not they could be employed,” says Sebastian. “But we cannot ignore them.”

In a region that struggles with economic development, the PNW LNG and PRGT projects promise to bring thousands of jobs to northern British Columbia, including at least 200 jobs for Gitxsan members. Sebastian says those jobs will mainly be clearing bush and trees for the pipeline, working in work camps, and providing safety and security services. In addition, he says the hereditary chief's business arm, the Gitxsan Development Corporation (GDC), has already provided skills training for 160 people.

GDC director Rick Connors says the corporation has become the largest employer in the entire area, employing more than 110 people at peak times this past year. He estimates they’ll gross more than $20 million in 2017.

“We heard testimony from some of our staff … that the suicide rate has come down in the area. We’ve made a tremendous difference in the area because we’ve now brought some economic hope,” says Connors.

Suskwa River, viewed from the Madii Lii camp on Lutkudziiwus wilp territory. Some wilp members are concerned that the salmon populations that swim this river will be put at risk by LNG development on the north coast, where the salmon eventually end up. Photo: Trevor Jang

But the occupiers of the Madii Lii camp don’t believe the economic benefits of the projects are worth the environmental and cultural risks they pose. They are focused on protecting the salmon that swim through a series of rivers in Gitxsan territory and eventually end near the proposed site of the PNW LNG terminal on the coast.

“We are in an economically challenged area where we’re primarily more focused on protecting our environment and way of life [than on] joining a huge industrial development that could potentially leave lasting negative impacts to our land,” says Wright.

“Our nation relies upon the salmon to subsidize our food and sustain us.”

How Was the Pipeline Decision Made?

The PNW LNG project received conditional approval from the federal government in September 2016, with 16 First Nations along the PRGT pipeline signalling their support for the project. These communities are positioning themselves to receive millions of dollars in financial benefits. At the time, the Gitxsan were not publicly among them.

Less than a month later, however, a pair of confidential documents were leaked into the community, revealing that, much to the surprise of many Gitxsan people, they were included among the First Nations supporting the pipeline.

One document, the “Prince Rupert Gas Transmission Project Natural Gas Benefits Agreement,” says the B.C. government will provide the Gitxsan Nation with nearly $6 million at various stages of construction in exchange for the nation’s support of the project. The other document, the “Trustee Resolution of the Amdimxxw Trust,” states how much each individual chief who signed on is distributed.

Sebastian’s share? More than $500,000. But that money, he says, is for all Luutkudziiwus wilp members.

Three other chiefs (Mauus, Wosimlaxha, Gyet’mgaldo’o) whose territories are close to where the pipeline would cross also accepted money in exchange for their support of the project.

“If we divided the funding up per person, each person would be entitled to about $1,100. So I asked each members that I speak to, ‘Do you want that? Or do you want to keep it together so we can invest or do something valuable?’ And they would rather keep it in an account until we all decide how to disburse the money,” he says.

However, some Luutkudziiwus wilp members are upset Sebastian didn’t consult with them before signing on their behalf.

The leaked agreements were left on the doorstep of Richard Wright’s sister Pansy Wright-Simms, who is also a Luutkudziiwus member. She immediately uploaded photos of the documents to Facebook, sparking over 100 comments and shares from people expressing shock and disapproval.

“The information was just mindblowing to me,” Wright-Simms says. “People were clearly upset that nine individuals could speak on behalf of our entire nation."

“We clearly haven’t consented to this.”

Shortly after the documents were leaked, the chiefs who signed the agreement released an information package to members. It outlines the benefits of the agreement and explains how the chiefs came to their decision. It describes a four-year process that included more than 45 meetings with PRGT, the provincial government, industry experts, and those opposed to the project. But that process doesn’t mean that chiefs had a mandate from their communities or the Gitxsan Nation to sign the agreements.

'Why Do I Have To Consult With Them?' 

Darwin Hanna is an Aboriginal lawyer with expertise in First Nations land rights. While not speaking specifically about the Gitxsan, he stresses that First Nations leaders have a duty to inform their own people.

“First Nations generally have a fiduciary duty to make sure the membership is fully engaged and provided with full information prior to making any decisions that may affect the way of life,” he says. This duty was confirmed in the landmark 1997 Delgamuukw court case, where the Gitxsan went all the way to the Supreme Court of Canada to fight for their legal right to the land — and won. The case also confirmed that Aboriginal land rights are held communally, which means that decisions regarding the land should be made communally.

“The issue here is: Has the leadership taken certain measures to provide for informed consent?” says Hanna.

Madii Lii camp occupiers protest a visit from B.C. Premier Christy Clark in Smithers, B.C. in November 2016. Photo: Trevor Jang

When asked about consultation with wilp members, Sebastian says, “I indicate to the people what I’m doing. They know that I’m involved with this pipeline. Nothing happens on Gitxsan territory without people knowing.”

Sebastian believes that the hereditary chiefs have the authority to make decisions regarding the land on behalf of their members. “If somebody wants to cross the territory, they speak to the head chief. If you want to camp there, you speak to the head chief. If you want to build a pipeline, you speak to the head chief.”

So did Sebastian consult with his members? He says, “Consultation has happened. We did it from the point of view of our ayook [traditional Gitxsan law]. And we felt we did a very good job.”

The Luutkudziiwus have approximately 600 wilp members. When pressed about exactly how many of those members Sebastian consulted before signing the agreement, he says, “Probably around 10.”

And what did consultation with those 10 look like? Sebastian responded, “I don’t understand what you mean. Why do I have to consult with them? It’s the government’s obligation to consult, and they consult with me as a representative of the 600 people.”

Expert Says Government Scared of Informed Consent

Jacob Beaton is a former communications consultant who spent more than 15 years assisting B.C. First Nations with engaging their members leading up to difficult decisions. He says uninformed membership is a common problem in pipeline negotiations. He places blame primarily on the pipeline companies and the provincial government.

“The problem is that there’s a lot of opposition from proponents and governments to inform people because they’re terrified of a possible ‘no.’ So rather than do any effort to inform people, they just say, ‘Let’s do a confidential agreement and forget about informed consent,’” he says.

Beaton has been trying to help the community make sense of the agreements since they’ve been leaked. He’s Tsimshian, not Gitxsan, but he grew up and resides locally in Hazelton, B.C., which is in Gitxsan territory. He says the B.C. government continues to create community backlash by pressuring leaders into signing agreements without first gaining a mandate from their members to do so.

“I’ve been in the room where First Nations have been saying, ‘We need some money so we can inform our people.’ And the government representatives have said, ‘No, just sign, then take the money and inform your people.’ How backwards is that?”

Former communications consultant Jacob Beaton says governments and industry are opposed to informing First Nations communities about resource development projects because they are “terrified of a possible no.” The result? Confidential agreements and community backlash. Photo: Trevor Jang

A representative from the provincial government responded to these claims in an email, writing that “government provided the opportunity for consultation on the Prince Rupert Gas Transmission project to Gitxsan hereditary chiefs whose house territories could potentially be directly affected by the project, as well as any other interested Gitxsan hereditary chiefs — and many expressed support for LNG development.”

The response did not directly address the claim that government representatives advocate confidentiality with individual First Nations leaders out of fear of getting a “no” from the community at large.

As for PRGT, when asked how they consulted with the Gitxsan on the project, a representative wrote in an email, "TransCanada [of which PRGT is a subsidiary] has a robust engagement policy that guides all of our interactions with Indigenous communities. As a result of those interactions, PRGT has been able to sign benefits agreements with 13 First Nations along the route. This demonstrates that our approach works."

The Traditional Approach to Business

Pansy Wright-Simms says that in Gitxsan tradition, a business decision of this magnitude would be decided communally in the feast hall. All chiefs and wilp members would gather and have their voices heard. The meeting would go all night, and the chiefs would walk away with a mandate from the people to either negotiate or oppose the project.

“If government or industry wanted to do any business on our territories, they should be doing the business in our feast halls. They have to remember they are visitors here. These agreements are happening because they know they need consent of the first peoples of these territories,” she says.

“What’s said in our feast hall is our law.”

Wright-Simms says that didn’t happen with the PRGT decision. Instead, the agreement was negotiated through closed-room discussions. But GDC director Rick Connors, who led the negotiations on behalf of the chiefs, says draft agreements needed to be kept confidential in order to maintain leverage in negotiations.

“We had to have these very closed-room discussions about these sort of things because that’s just the way these negotiations are. You don’t disclose your position to the opposite party while you’re negotiating a contract and expect that you’re going to get success if you do do that,” he says.

His view clashes with that of Wright-Simms, who says she is fighting for the Gitxsan to return to the way previous generations did business, which was communally. “I really feel sick that we’re falling into their system and their way of doing business. Because our business is traditional,” she says.

George Muldoe is an elder from the Delgamuukw wilp. He sees the recent conflict as a sign that the Gitxsan are losing touch with their traditions. “Personally, I think we’re in dire straits because every time I go to a feast, I look down the table and there’s nobody there you could trust,” he says.

Muldoe, a residential school survivor, says Gitxsan culture isn’t being passed on to younger generations. “We’ve got four cabins and nobody goes out there. Nobody’s learning the territories. They don’t know our boundaries. I’m really afraid of it. There’s no interest,” he says.

As an outsider looking in, Beaton acknowledges that the governance issues facing the Gitxsan are complex. There are more than 100 chiefs at any given time, all trying to make decisions. Some support LNG development, some don’t, and some don’t know. Beaton says the divide and the complexity within the Gitxsan Nation have frustrated both government and industry who want to develop projects across Gitxsan land.

“The feedback I hear is that the Gitxsan government situation is a disaster. I’ve been in rooms where the Gitxsan are a bit of a joke, to be frank,” he says.

But what’s not funny is the result of this so-called disaster. With no clear communal decision-making process in place, Wright-Simms believes government and industry end up negotiating behind closed doors with whoever is most likely to say yes to development. And she points her finger squarely at the man who signed on behalf of the Luutkudziiwus wilp: Gordon Sebastian.

“He does not have the authority or the consent of our house group to represent our interests as he is not our chief,” she says.

Who Speaks for Luutkudziiwus Land?

In Gitxsan law and culture, a chief name is passed on one year after the previous holder of the name dies. This is done in the feast hall with witnesses present.

But when the previous hereditary chief Luutkudziiwus passed away, both Charlie Wright and Gordon Sebastian held settlement feasts to take the Luutkudziiwus name. The Wrights say one feast was held for Charlie first, and that Sebastian held one shortly thereafter. The Wrights say the wilp elders chose Charlie to lead, while Sebastian says his uncles chose him.

“As a hereditary chief, I cannot put Charlie down. I respect him,” says Sebastian. “But you have to take a look at Charlie. He’s quiet. He never speaks up publicly. He never challenges me publicly. He never challenges me in the feast hall.”

But when asked, Charlie Wright says that Sebastian does not represent the wilp. “These names belong to the house. Gordy did this on his own. He does everything on his own.”

On Jan. 10, 2017, members of the Luutkudziiwus wilp teamed up with the Gwininitxw wilp to launch a court action against the federal government's approval of the Pacific NorthWest LNG project. Photo: Trevor Jang

On Jan. 10, 2017, the Wrights, representing the Luutkudziiwus wilp, joined with members from the Gwininitxw wilp to file a court action in an effort to stop the project. They hope to have the federal government’s approval of PNW LNG overturned on the claim they were not properly consulted.

Meanwhile, Richard Wright, Charlie Wright's appointed spokesperson and a distant cousin, has been gathering signatures of wilp members who support Charlie Wright over Sebastian. So far, he says, he has gathered 30. He says what scares him the most about the pipeline agreements is the precedent they set: that a chief can make a decision regarding the land without consulting the wilp group.

“They are making it so that the chief is the only one that you need to talk with or pay off and that has never been the way it is. A chief takes his direction from the entire house group. The chief name belongs to the house group. The lands and resources are under the authority of the house group,” he says.

Restoring Communal Decision-Making

Beaton believes that the Gitxsan have the ability to get their governance back on track.

“If Gitxsan really want to change things, they can do it. But the different factions need to stop ignoring people. [They] need to actually go and comprehensively have a conversation and find out what their people want and where the lines need to be drawn,” he says.

While the Luutkudziiwus wilp and the Gitxsan Nation are struggling to work through internal division over how decisions are made and who can speak for the people, the government has a signed agreement saying that the entire Gitxsan Nation consents to the project. The process has left many people in the community feeling ignored, and it remains unknown what Gitxsan members actually want.

Beaton calls this a “terrible process” imposed by governments and industry when they want to build major projects across traditional territories. He says that if the province was willing to advocate for and support First Nations in establishing their communal decision-making processes, everyone might get what they want in the end, without backlash from members.

“The fact is, if most Gitxsan people were informed of the impacts and collective benefits to development, I believe a majority would say yes. Why? Because people here are economically destitute. There are a lot of empty fridges. It’s a real thing.” Beaton says.

“We have kids that show up to our door hungry, and we feed them. They come at the end of the day and they haven’t had a meal all day long. Most of my kids’ friends are Gitxsan, and most of their friends are hungry every single fricking bloody day.”

Internal Division in Gitxan First Nation Raises Questions About Informed Consent for #PNWLNG https://t.co/mrsnSHkL6x @discoursemedia #bcpoli pic.twitter.com/p9sP7tMNzZ

— DeSmog Canada (@DeSmogCanada) February 21, 2017

Province Funded Both Sides of Luutkudziiwus Dispute

Discourse Media has learned that two ministries within the B.C. government provided separate funding to Gordon Sebastian and Charlie Wright, who both claim to hold the Gitxsan hereditary chief name Luutkudziiwus.

The Ministry of Aboriginal Relations and Reconciliation negotiated with Sebastian regarding benefits in exchange for support of the Prince Rupert Gas Transmission (PRGT) pipeline crossing Luutkudziiwus territory.

At the same time, the Ministry of Forests, Lands and Resource Operations provided funding for Wright to clear the Suskwa Forest Service Road near the Madii Lii camp, which was set up to strategically block the path of the proposed PRGT pipeline. The funding contract, worth $32,200 and obtained by Discourse Media, was executed through the Gitanmaax Band Council.

Former First Nations communications consultant Jacob Beaton says it’s a standard government strategy to fund both sides of conflict within First Nations communities. However, he doesn’t believe it’s a “divide and conquer” tactic.

“I used to think that. I used to think there was some grand conspiracy to hold First Nations back and do some damage,” Beaton says. “There is no grand strategy. They have a vision to build pipelines. But they don’t get how to do that with First Nations. They are clueless. That’s what’s going on.”

Image: Christy Clark via Flickr

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

By Trevor Jang for Discourse Media.

Earl Muldon sits at his kitchen table surrounded by family, sipping coffee. His wife Shirley brings over a plate of cream cake topped with huckleberries. They’re hand-picked from the land surrounding his two-storey home in Gitanmaax, a village of about 800 people from the Gitxsan Nation in northwestern British Columbia, near the town of New Hazelton.

To the Gitxsan people, 80-year-old Muldon is known by another name: Delgamuukw. That name — a symbolic ancestral chief name passed down from generation to generation of Gitxsan people — is also one of the most well-known chief names in the rest of Canada. Delgamuukw was the lead plaintiff in a historic court case that confirmed that Aboriginal title, ownership of traditional lands had not been extinguished by any colonial government.  

“It’s a name that’s greatly respected. We’ve earned respect for it,” says Muldon, who was one of three people to hold the Delgamuukw name during the court proceedings.

The 1997 Supreme Court win against the B.C. government was important to Indigenous people across Canada because it provided a new test to prove ownership over their traditional lands and waters. It was monumental to the Gitxsan because they seemed poised to assert self-governance over their 33,000-square-kilometre territory.

Fast-forward to the fall of 2016, when it emerged that Muldon was among a group of nine Gitxsan chiefs who had accepted money in exchange for their support of a controversial liquid natural gas (LNG) pipeline without consulting all of their nation’s members. Some Gitxsan people say that decision broke “ayook,” traditional Gitxsan law — and could undermine what the nation fought to prove in court 20 years ago.

So how did Muldon, who holds the hereditary name, Delgamuukw, that represented the unified Gitxsan Nation in their fight for their land, come to be among the group supporting resource development and spurring internal conflict among the Gitxsan?

The Significance of Delgamuukw 

The court case began in 1984. The Gitxsan and the neighbouring Wet’suwet’en Nation were frustrated because the B.C. government was allowing clear-cut logging to take place on their territory without hereditary chiefs’ permission. So, in an effort to get British Columbia to address their claims to land rights, the chiefs of both nations claimed ownership and self-governance over their respective territories.

More than 100 Gitxsan chiefs, who each represent their own “wilp,” or house group, are responsible for upholding ayook and acting as the voice of their people in addressing cultural, environmental and economic issues that impact their territory. While he was just one of many, Delgamuukw became the named plaintiff for the case. His name represented the chiefs and, by extension, the Gitxsan and Wet’suwet’en people.

The chiefs spent the next several years giving testimony in court. They spoke in their own language, which was translated, describing ayook and “adaawk” (their oral history) in detail. To them, this oral testimony proved that the Gitxsan have occupied their territory under a complex legal system for thousands of years. But to Justice Allan McEachern, it was not enough to prove ownership of the land.

In 1991 at the B.C. Supreme Court, McEachern decided in favor of the B.C. government, describing Aboriginal life as "nasty, brutish and short.” He announced that Aboriginal title, the legal term for Aboriginal ownership over land, had been extinguished by the Crown in 1858.

The Gitxsan and Wet’suwet’en appealed, eventually taking their case all the way to the Supreme Court of Canada. Twenty years ago this year, on Dec. 11, 1997, the Gitxsan and Wet’suwet’en saw the previous ruling overturned — and made history. The ruling had a huge influence on subsequent land rights cases, which have mostly favoured Indigenous plaintiffs.

“Delgamuukw wasn’t just for the Gitxsan. A lot of people have won their case on our case,” says Muldon.

The Delgamuukw decision set several important legal precedents that many other First Nations have built upon in the courts ever since. Firstly, the Supreme Court of Canada recognized that oral histories like the Gitxsan’s adaawk were as valid as written evidence. This means that First Nations across Canada can refer to their own oral history and laws when claiming their traditional land in court.

Secondly, overturning McEachern, the court case confirmed that Aboriginal title, ownership of land had never been extinguished in British Columbia. This is because, unlike in most provinces in Canada, British Columbia didn’t negotiate historical treaties when settler populations moved into Indigenous territories.

In short, the Gitxsan proved that traditional Gitxsan land is still Gitxsan land.

“It’s bribery, more or less”

In October 2016, two confidential documents were leaked on Facebook. They fuelled divisions over who can speak for the Gitxsan and how decisions are made on behalf of the Gitxsan people. These divisions have been growing gradually since the end of the Delgamuukw legal victory.

The documents showed that several Gitxsan hereditary chiefs, including Muldon, gave consent on behalf of the Gitxsan Nation for TransCanada’s proposed Prince Rupert Gas Transmission Project (PRGT). The 900-kilometre pipeline would carry LNG from northeastern British Columbia to the Pacific NorthWest LNG export terminal proposed for Lelu Island on British Columbia’s north coast, crossing the territories of 10 Gitxsan wilp groups along the way.

The signatures of eight out of these 10 wilp chiefs appeared on a document called “Trustee Resolution of the Amdimxxw Trust,” dated Sept. 6, 2016. This document lists the chief names next to dollar amounts, dividing a total of more than $5.3 million between them. After this document was leaked, the chiefs released an information package to members, confirming that nine of the 10 wilp chiefs whose territories would be crossed by the pipeline had given their consent to the project.

Screenshot of the leaked Trustee Resolution of the Amdimxxw Trust, courtesy of Discourse Media. Click here for the full document.

The second document leaked was called the “Prince Rupert Gas Transmission Project Natural Gas Benefits Agreement.” It says the B.C. government will provide the Gitxsan Nation with numerous payments, adding up to nearly $6 million, at various stages of construction in exchange for support of the project. It contains a clause that prohibits any Gitxsan member from challenging the LNG pipeline project in court. 

When asked about the agreement, a representative who asked that the statement be attributed to the government of B.C. wrote in an email that “financial benefits provided through the agreement are transferred to the Gitxsan Development Corporation on behalf of the Gitxsan Nation. Benefit payments are not made to individuals.”

Payments from the government are made to the Gitxsan Development Corporation (GDC). GDC director Rick Connors confirmed that he facilitated payments from the province on behalf of the chiefs. Connors said that upon receiving the payments made thus far, he immediately transferred the same amount into the Amdimxxw Trust. Connors called the Amdimxxw Trust the “vehicle through which the directly impacted hereditary chiefs will manage their trust funds.”

Connors stressed that the agreements leaked were draft agreements. The benefits agreement with the province is now finalized and public, and Connors confirmed the Gitxsan have received $1.2 million from that agreement so far. The Gitxsan have also reached a separate project agreement with PRGT. While the financial details are confidential, Connors said the funds from that agreement also went into the Amdimxxw Trust.

The total value of the Amdimxxw Trust and how much is currently in the name of each chief also remains confidential. When asked if the $5.3 million in the draft agreement is correct, Connors said, “I’m not at liberty to neither confirm nor deny that.” He did say that the chiefs are looking to spend some of the money on projects that would benefit the broader community, such as an elders’ home or a low-cost housing facility.

If the draft agreement of the Amdimxxw Trust is correct, Muldon’s share of the pie comes in two instalments: one of $40,000 and a second of nearly $300,000.

Three other chiefs (Mauus, Wosimlaxha, Gyet’mgaldo’o) whose territories are close to where the pipeline would cross also accepted money in exchange for their support of the project. Image: Discourse Media

“There’s such a massive amount of money. It’s bribery, more or less,” Muldon admits. But he doesn’t consider the money his to spend. He says he will discuss with his wilp members how the money could best serve the community. Until then, it will remain in the Amdimxxw Trust.

“I had members phone me and say they want $10,000, they want $20,000 — kind of a blackmail type thing. We never spent any money. We didn’t want to deal with that type of method,” Muldon says. “It’s just sitting in the pot, that’s all.”

In addition to speaking with Muldon and Gordon Sebastian, another chief whose signature appeared on the “Trustee Resolution of the Amdimxxw Trust,” Discourse Media attempted to contact the six other chiefs whose signatures appeared on the resolution, as well as the ninth chief whose support was later confirmed. They were unavailable or unwilling to comment about why they consented to the project. 

When asked how they consulted with the Gitxsan on the project, a representative from PRGT wrote in an email, "TransCanada has a robust engagement policy that guides all of our interactions with Indigenous communities. As a result of those interactions, PRGT has been able to sign benefits agreements with 13 First Nations along the route. This demonstrates that our approach works."

Pipeline Deal Could Undermine 1997 Court Case

Muldon’s nephew was upset when he first heard the news that his uncle had signed on to the pipeline deal.

“My initial reaction was disappointment,” says Kirby Muldoe, who works for SkeenaWild Conservation Trust, which opposes siting the pipeline terminus on Lelu Island. “And not just on the part of my uncle, but on the part of all who signed. I felt the Gitxsan people were not consulted as we should be. In both our laws and western laws you have to be consulted. And none of that happened.”

But Sebastian says the chiefs went through an extensive four-year process before coming to a decision. This involved over 45 meetings with PRGT, the provincial government, industry experts and those who are opposed to the project. Sebastian is also executive director of the Gitxsan Treaty Society (GTS), which takes on projects working toward self-governance on behalf of the Gitxsan Nation.

“So what we did over four years is we evaluated everything. The environment. The birds. The animals. I did all that stuff. I took it all into consideration. Me as well as the other 10 chiefs. Nine out of 10. We did all that and we did it jointly,” Sebastian says.

“Consultation has happened. We did it from the point of view of our ayook. And we felt we did a very good job.”

Muldon was unaware that his consent for the project would be represented as standing in for that of the entire Gitxsan Nation. He claims he did consult with some members of his wilp before making the decision. “We had discussions on it and then I had discussions with my family. We decided we have to go with progress.”

But according to Neil John Sterritt, a Gitxsan member and a consultant who assists First Nations with Aboriginal rights and title research and asserting self-governance, the chiefs did not follow ayook.

Sterritt was a witness in the Delgamuukw court case and was on the stand for more than 30 days. He fears the chiefs who signed the agreements have undermined key legal principles that came out of their victory. In Delgamuukw, the courts said that “Aboriginal title is held communally.” This means that the land belongs to the Gitxsan Nation as a whole and not just to hereditary leaders. Therefore, decisions regarding the land have to be made communally.

“No individual hereditary chief can make such a decision because the Gitxsan Nation is a collective of all members,” Sterritt says. “And the hereditary chiefs act for all members and they should all be involved in any decision that binds the nation, which this does.”

Sterritt says that under ayook, which was described in the court case, Gitxsan chiefs must consult with all members of their respective wilp groups before making a decision that would impact them.

“When we did Delgamuukw, I went to meeting after meeting with each house. They had a chance to ask questions. We told them what the implications were if we won or lost. If they agreed, they would tell the hereditary chief and the hereditary chief would then be able to sign documents on their behalf.”

“I’m not saying exactly that has to happen, but something mirroring that has to happen. In other words, there has to be due diligence and due process, and there’s been no due diligence or due process in this,” Sterritt says.

“It was done secretly,” he adds. “It was done so people like me would not know. Not just me, but a lot of people who were opposed to the way things operate.”

B.C. Government Payments for LNG Support Called 'Bribery,' Divide Gitxsan Nation https://t.co/peOurzBPML #bcpoli #bclng #bcelxn17 pic.twitter.com/PcsdbXAtul

— DeSmog Canada (@DeSmogCanada) February 8, 2017

Accusations of Corruption Followed Court Case

This is not the first time divisions over a pipeline agreement have caused controversy among the Gitxsan. In December 2011, Enbridge announced it had reached a deal with the Gitxsan in support of the now-dead Northern Gateway pipeline proposal. That deal had been signed by former GTS chief negotiator Elmer Derrick, who faced similar backlash for negotiating behind closed doors.

A few days after the December announcement, a blockade of the GTS office formed, under the direction of a number of hereditary chiefs. The GTS then claimed it also represented the hereditary chiefs and filed an injunction against the blockade. The two sides ended up in court, where they repeatedly fought over who has the legal right to speak for the Gitxsan Nation.

Around the same time, an assessment for a forensic audit of the GTS was conducted after several allegations of misuse of funds were reported to the police against Derrick, former negotiator Bev Clifton Percival and current executive director Sebastian. None of the allegations were ever proven.

Despite being among those who signed on to support the latest LNG pipeline, Muldon himself acknowledges that there are problems with how the Gitxsan govern themselves. He is frustrated with how the GTS and the GDC operate.

“We have to clean house,” says Muldon, adding that he feels he’s not being listened to. “What’s going on is not good. We’re not further ahead when we abide by some dictator. Policies that our people are doing down at the office are not totally our wishes. But they have the say in the office. That’s basically what it is.”

“It’s almost spineless to see what our people working for us are doing,” he says.

At the same time, Muldon is not opposed to development on the territory. He wants jobs for the Gitxsan people. He is open to the PRGT crossing Gitxsan land. However, he remains opposed to the proposed location of the Pacific NorthWest LNG terminal on Lelu Island, a common concern from First Nations and environmentalists.

Legacy of Delgamuukw

Twenty years ago, the Gitxsan defeated the B.C. government in court by being united. But now, internal division has become rife among Gitxsan chiefs and members. A chasm has  formed in the nation because chiefs disagree over how best to implement the Delgamuukw decision. 

It’s important to note that even though the Gitxsan and Wet’suwet’en won their case, the courts still did not declare that they have Aboriginal title. The judge determined they would have to go back to court separately and seek a declaration of title. And while the Tsilhqot’in Nation did just that in 2014 by building on the legacy of Delgamuukw, the Gitxsan have not.

On June 26, 2014 the Supreme Court of Canada issued an unprecedented decision on Indigenous land rights in Tsilhqot’in Nation v. British Columbia, granting the first declaration of Aboriginal Title in Canadian history. This is the team of people who won the case. Photo: Thompson Rivers University

“It’s something that we should be doing instead of the chickenshit politics that we do here,” says Muldon.

When asked what holding such a historic and prominent name like “Delgamuukw” means to him, the elderly Muldon took the question literally. “Delgamuukw is the sunset, the red glow on the horizon when the sun starts to set,” he says.

Twenty years after the sun set on their landmark legal victory, the Gitxsan are divided over decisions Muldon and the other chiefs made. While the province and industry claim they have support from the Gitxsan for the pipeline plans based on the signatures of some Gitxsan hereditary chiefs, the issue within the Gitxsan Nation remains unsettled.

Image: Gitanmaax is a reserve in northern B.C. where Gitxsan members discovered confidential documents revealing that some hereditary chiefs had given their consent for the PRGT pipeline in exchange for money. Photo by Trevor Jang.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

By Discourse Media with additional reporting from Carol Linnitt.

Members of the Lax Kw’alaams First Nation in northwest B.C. were given an extremely short amount of time to respond to an opinion poll that asked if they support energy development in their territory.

The polling followed a series of four information sessions held by the band council in June, focused on plans for liquified natural gas (LNG) development. At the information sessions, band members were presented with a proposed package of benefits that hinge on them voicing their support for the contentious Pacific NorthWest LNG (PNW LNG) project at the mouth of the Skeena River.

Community members are concerned because the polling question did not explicitly reference the PNW LNG proposal, which includes plans to develop the company’s LNG terminal on Lelu Island, near Prince Rupert. Other concerns about the poll that have been flagged by band members include missing forms in packages mailed to them and misinformation included in the proposed agreements package.

Biased Process

The poll question was framed and composed in a way that was likely to push respondents toward answering a particular way, says David Moscrop, a political scientist and PhD candidate at the University of British Columbia. “The implication is, ‘Don’t worry about the environmental impact; assume it will be fine . . . Are you okay with [development]?”

Moscrop says the structure of the question makes him suspicious of the intent behind the poll. “If you’re not going to do it properly, why are you doing it? Is it because you want to legitimize something you intend to do either way?” he asks.

The question itself, the timeline of the poll and location of the polling stations were all decided by the band council, according to Lawrence Lewis, an independent electoral officer hired by the Lax Kw’alaams band to oversee the process.

Ballots were mailed to all community members both within Lax Kw’alaams and living outside of the village, says Lewis. Members also had the chance to vote in person at polling stations in Lax Kw’alaams and Prince Rupert.

On August 25, The Lax Kw’alaams band council said they received 812 responses (1 spoiled) with 65.5 per cent (or 532 people) voting YES and 279 voting NO.

The mayor of Lax Kw’alaams, John Helin, wrote a message that said: “This is just another step in a process that could lead to the proposed Petronas project becoming a reality. We will have meetings with the appropriate parties (Petronas, Province, Federal Government) to see what the next steps are for this proposed project.”

Helin’s comments have led some to wonder if the poll, which didn’t mention PNW LNG by name, may be used as a de facto referendum for the project despite not being presented to the community as a binding vote.

Which may be how the B.C. government views the poll’s results.

The province released a statement thanking the community for the “positive vote” and Rich Coleman, B.C.’s Minister of Natural Gas Development, congratulated the community for voting to continue talks with government.  

Lax Kw’alaams Pacific Northwest #LNG Poll Raises Questions About #FirstNations Consultation https://t.co/Io16H27zAT #bcpoli

— DeSmog Canada (@DeSmogCanada) September 1, 2016

Misleading Information

Discourse Media obtained the proposed benefits package that was presented at four community information sessions in June. It includes misinformation about the nature of an infrastructure project granted to the community last year, as previously reported.

The $22-million paving of Tuck Inlet Road, the only road into Lax Kw’alaams, is presented as an incentive for the community to support LNG on Lelu Island. But the project was negotiated by the band’s previous mayor, Garry Reece, who says paving Tuck Inlet Road was never tied to any LNG proposal. In the proposed benefits package it is referred to as “work started by Provincial Government as an inducement for good faith negotiations on LNG.”

While Moscrop calls into question the intent of the poll, community member and activist Christine Smith-Martin says the question is too vague and should simply ask members to say yes or no to development on Lelu Island. “It’s like writing a blank cheque. They want us to sign a blank cheque that allows them to do whatever it is they want to do,” she said.

Smith-Martin also raised concerns about the execution of the poll. She said members of her family received their ballots without the necessary First Nation Declaration Form.

In order for a ballot to be counted, they had to be  returned with a signed First Nation Declaration Form which stated: “I solemnly affirm that I am an eligible Elector of the Lax Kw’alaams Nation at the address listed below and that I am at least 18 years of age.”

Lewis acknowledges the initial mistake but says all members have now received the declaration form. When asked about concerns regarding the short timeframe of the poll, the framing of the question and the lack of polling stations in Vancouver or Terrace — where many Lax Kw’alaams members reside — Lewis deferred to the band council, saying he could only speak to the process, not how these decisions were made by the Lax Kw’alaams band.

Community Left Feeling Confused, Angry

Other concerns include the information sessions that preceded the polling. The main point of contention relayed by people who attended those meetings was the highly technical nature of the presentation, which many saw as one-sided and biased in favour of supporting Pacific Northwest LNG.

Community member Sandra Dudoward says the current poll was not handled as well as a previous canvassing of community views about the project. Dudoward was referring to a series of votes that drew international headlines in May 2015. Lax Kw’alaams voted against supporting PNW LNG in exchange for a $1.2-billion benefits agreement offered by Petronas, the Malaysian-based energy company behind the project.

Dudoward says she was given a month’s notice to prepare for that vote. This time around, she was given about a week. She found out about the vote on Aug. 16, and had to call to request an emailed ballot. The poll required that all ballots be received by mail before Aug. 24 or delivered in person at one of the polling stations in Lax Kw’alaams or Prince Rupert.

Dudoward worries that the timeframe of the poll was too short and might have affected voter turnout. She also wondered why the band hired an electoral officer to oversee the process given that the polling seemed informal and the question vague.

Despite the question not being explicitly about PNW LNG, the local Prince Rupert newspaper, The Northern View,  seemed to confirm suspicions that the poll be seen as just that. “Lax Kw'alaams members vote 'Yes' to ongoing talks with PNW LNG,” said The Northern View’s August 25 on-line headline.

Against Autonomy

For political scientist David Moscrop, the issue is bigger than just the poll and its outcome. He sees it as a larger affront to the democratic process that works against the movement towards Indigenous autonomy.

“If we’re saying that there is a legacy of colonialism and exploitation and stripping people of their power and their right to self-determination, then we should be even more sensitive that there are groups that might be doing that again,” he said.

Image: Ash Kelly

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.