‘Dangerous precedent’: pipelines, land defenders and the colonial policing of Indigenous nationhood

Jocelyn Alec, who goes by Jocey, was one of the Indigenous land defenders arrested in a militarized RCMP raid of Wet’suwet’en territory in November, as part of a police enforcement of a Coastal GasLink pipeline company injunction against project opponents.

Daughter of Wet’suwet’en Hereditary Chief Woos, Alec said she was “shocked” when, after spending three nights in police custody, she heard Coastal GasLink ask for confirmation she was Wet’suwet’en during a bail hearing in a B.C. court. 

“I wanted to say, ‘My dad is sitting right there. Ask him yourself,’ ” Alec told The Narwhal in an interview. “I was quite surprised. … I was sitting there shaking my head.”

Questions of Indigenous identity, Indigenous governance and belonging have swirled around the controversial 670-kilometre Coastal GasLink pipeline, owned by TC Energy, which would connect natural gas producers in the province’s northeast with the LNG Canada facility currently under construction in Kitimat. The site of the conflict in northwest B.C. — where the RCMP recently conducted more than 30 arrests, including of journalists — takes place where the approved project cuts through the heart of unceded Wet’suwet’en territory. 

Although many point to the fact that the five elected Wet’suwet’en band councils signed benefits agreements with Coastal GasLink and support the project, Wet’suwet’en hereditary chiefs, who are responsible for off-reserve decision-making on the nation’s 22,000 square kilometres of territory, have remained staunchly opposed to the pipeline and say they were not consulted prior to the province’s approval of the project in 2019. 

Project proponents have consistently called into question the legitimacy of the hereditary chiefs and their supporters who have constructed and run the Unist’ot’en healing centre along the pipeline’s right-of-way since 2009 in an act of territorial authority and assertion of land rights.

Now, Indigenous land defenders arrested in the third RCMP raid in as many years are required to attend court hearings for violating Coastal GasLink’s court-ordered injunction, and fresh legal pressures are being applied to the question of who makes for a legitimate Indigenous pipeline opponent in the eyes of industry and government. 

Merle Alexander, a member and hereditary chief of Kitasoo Xai’xais First Nation who practices Indigenous resource law at Miller Titerle and Company, said Coastal GasLink’s questions about Indigenous identity are an example of how industry and government begin litigation with a “rights-denial perspective.”

“It starts at the core, ‘you have nothing,’ ” he told The Narwhal. “Then they build outwards.”

He worries this shows that “industry’s approach is regressing, not progressing” on Indigenous Rights. 

As Indigenous Peoples assert their right to undertake civil occupations of their own territories, industry is “clearly thinking about a wider variety of defences,” Alexander said.

“They’re always thinking about how they can make the burden higher for the other side,” he said.

Sleydo’ (Molly Wickham), a wing chief in Cas Yikh house of the Gidimt’en clan and governance director for the office of the Wet’suwet’en, said she first learned her Wet’suwet’en identity was being questioned in court while she was sitting in a jail cell. 

Frances Mahon, lawyer for Wickham, Alec and a number of other individuals arrested in November, told Wickham that Coastal GasLink’s lawyer brought up the question of her identity the day before arrestees were due to appear at a bail hearing in Prince George.

“Basically they said Coastal GasLink’s understanding was that [Wickham] was Gitxsan and [were] asking for confirmation she is Wet’suwet’en and which First Nation band she’s a member of,” Mahon told The Narwhal.

When Mahon inquired as to how Coastal GasLink would like Wickham to prove her identity — she asked whether she would be required to file an affidavit proving membership — she was told by the company’s legal council that self-identification would suffice. 

Mahon took the request to Wickham in her cell.  

“I really wasn’t surprised,” Wickham said. “I was like, ‘go ahead, do whatever you have to do.’ But it was still infuriating they felt they had the right or the position to do that.”

Wickham said she fears the practice of questioning Indigenous identity in a colonial court setting sets a “dangerous precedent.”

Both Wickham and Alec said they felt it was inappropriate for a private company to openly interrogate their identity and for the company to question how a determination of identity should or should not entitle them to access Wet’suwet’en territory. 

A Coastal GasLink spokesperson told The Narwhal in an emailed statement that “under no circumstances would Coastal GasLink ask that an individual prove they are Indigenous.”

“In an effort to understand who is part of the local Indigenous community, Coastal GasLink counsel asked the relevant contemnors confirm for the court they are members of the Wet’suwet’en. This was to enable access so the relevant contemnors can practice their Indigenous rights while under the court’s conditions,” the statement reads. 

Alec said she felt like the question in court “was a joke.”

“It was a really big slap in the face,” she said. 

“Questioning a Wet’suwet’en woman’s identity right in court in front of everybody is extremely insulting. To me, that’s pretty racist.”

In Wickham’s bail hearing on Nov. 23, Mahon told Justice Marguerite Church the court can’t determine who is Wet’suwet’en.

“That’s up to the community,” she said. 

The Narwhal asked Coastal GasLink if the company can explain how they understand the difference between asking an individual to confirm versus prove they are Wet’suwet’en. The Narwhal also asked Coastal GasLink why it was important to ask individuals to confirm their Indigenous identity. Additionally, The Narwhal asked for a response to Alexander’s concern that industry’s approach to recognizing Indigenous Rights is regressing. Coastal GasLink did not answer these questions, instead instructing The Narwhal to consult court transcripts.

The Canadian Association of Petroleum Producers as well as the Indian Resource Council did not respond to The Narwhal’s request for comment. 

The question of which Indigenous people are protesting the Coastal GasLink pipeline is also at issue outside of the courts. In November, as hereditary chiefs enforced an eviction notice demanding the immediate evacuation of Coastal GasLink workers from worksites in Wet’suwet’en territory, they did so with the support of non-Wet’suwet’en land defenders, including individuals from the Haudenosaunee Confederacy.

In a Dec. 7 opinion piece published in the National Post, members of the Gidimt’en Clan said they were “deeply hurt and angered by the conduct and statements of some of our community members and others who claim to be defending our lands and laws against the pipeline.”

“Our concerns are not about the pipeline itself,” the group wrote. “Some of us support it, some of us do not and some are neutral.”

“Our issue is that our traditions and way of life are being misrepresented and dishonoured by a small group of protesters, many of whom are neither Gidimt’en nor Wet’suwet’en, but nonetheless claim to be acting in our name to protest natural gas development.”

‘Challenging our traditional system of governance’

In the November court proceedings, Coastal GasLink recommended Wickham be banned from Wet’suwet’en territory in the injunction area around Morice River Forest Road except to access her home. Justice Church said this would be a disproportionate response and instead said Wickham can access the territory to hunt, fish and trap and for cultural purposes (all of which are constitutionally protected Aboriginal Rights), so long as she keeps 75 metres away from any Coastal GasLink active sites. Alec has to keep 10 metres away.

Combined with the question about Wet’suwet’en identity, Wickham called the company’s requests “horrendous.”

“Challenging me — and my identity and my belonging — is challenging our traditional system of governance,” she said.

“For them to think they can do that, and then restrict me and my family from being on our territory, is so blatantly racist and horrendous that everyone should be concerned.”

Mahon said it could be a dangerous precedent, adding the way the identity question was raised was “problematic.” 

“I don’t want to get into the habit of doing that, or playing into it,” she said. “It’s distracting and it’s offensive to Indigenous people whose cultures have been sliced up by the Indian Act.” 

The Indian Act, first introduced in 1876, was designed to eliminate Indigenous language, governance and culture. The act, under which elected bands like those of the Wet’suwet’en Nation were created, has been used to delegitimize and undermine hereditary forms of Indigenous governance. But Canada’s own Supreme Court acknowledged the limits of the Indian Act when considering holders of Aboriginal title. The court dealt specifically with the Wet’suwet’en and Gitxsan hereditary chiefs’ authority in the 1997 Delgamuukw decision.

In Delgamuukw, the Supreme Court recognized Wet’suwet’en and Gitxsan Peoples had never surrendered their land or had their title extinguished through treaties, or otherwise. The decision recognized Aboriginal title, the right to actively manage the land and benefit economically from its use, but that such title must be proven in the courts (the Wet’suwet’en hereditary chiefs were invited by the courts to bring a title case, which has not happened in the intervening years). The decision also acknowledged that Aboriginal title is a communally held right that the province does not have the power to extinguish. 

(The Delgamuukw decision left some room for infringements on Indigenous title for industry — agriculture, forestry, mining, hydroelectric power and infrastructure — and general economic development if these infringements can meet the legal test of being justified. The question of whether or not the province’s approval of the Coastal GasLink pipeline constitutes an infringement of Indigenous Title and Rights is one that would have to be addressed in the courts.)

Wickham’s husband, Cody Merriman, was also arrested during the raid. He wasn’t at the two sites where most arrests took place — a tiny house constructed by a pipeline dill site and Alec’s cabin in the territory — and told The Tyee he intentionally avoided blocking the forest service road, which is the primary point of access for the Coastal GasLink project. Merriman wanted to avoid arrest in order to be home with their kids. Merriman is from the Haida Nation, not Wet’suwet’en, so his release conditions prevent him from accessing Wet’suwet’en territory for hunting or cultural purposes. Under the conditions of his bail, Merriman is only allowed to go to and from his home, meaning Wickham is responsible for all hunting and other tasks on the land like collecting firewood. Merriman told the Tyee he didn’t fight the conditions of his release so he could return home quickly to their kids. 

Merriman’s conditions of release infringe on Indigenous Rights, according to Alexander, who points out that through a consensual process between nations, spouses have a right to live on and access their partner’s territory.

“The Canadian way of thinking [about it] is you’re sort of ‘licensed’ by the Wet’suwet’en because you’re a family member,” he said.

International law among Indigenous nations prioritizes this kind of reciprocity, he said.

Mahon, whose firm is also representing Merriman and will be taking on Alec’s representation, said they will be challenging his bail conditions to allow him access to the territory.

“I don’t see that being an uphill battle,” she said. 

“Sovereign title holders to the land should be the ones ultimately deciding who’s welcome and who’s not welcome there,” she said. “Coastal GasLink, in my view, shouldn’t have that authority.”

Indian Act takes an ‘impoverished view of citizenship’

Wickham said if Coastal GasLink pursued the request more rigorously, she expects they would have asked for Indian status because she and Alec are registered under non-Wet’suwet’en bands. 

Wickham is registered under the Stellat’en band. She said that’s because her Wet’suwet’en grandmother was married to a Stellat’en man in her first marriage. After he passed away, her grandmother remarried and had children including Wickham’s mother. But all of her children were still registered under Stellat’en, Wickham said.

“It wasn’t our community. We weren’t related to many people there,” she said.

Wickham’s mother lost her status when she got married. From 1879 to 1985, Indigenous women lost their Indian status if they married someone without status. Indigenous men didn’t lose their status if they married a non-status woman; in fact, their wife would gain status. The bill was repealed for gender discrimination and Indigenous women who lost status through marriage were able to regain it after 1985. Wickham’s mother was able to regain hers as well.

“Indigenous women’s positions in their community are continuously challenged,” Wickham said. “In this case it’s very beneficial to [Coastal GasLink] to challenge and undermine my position within the community.”

An Indigenous person can only register with one band under the Indian Act, even though people belonged to multiple nations before the Indian Act.

While the idea of dual citizenship isn’t a new concept, Canada has not allowed it for Indian Act status, Alexander said. The Indian Act takes “an impoverished view of citizenship,” he said. (Being a citizen of a nation and a band member are not synonymous.)

Wickham said questions about Indigenous identity, membership and belonging are huge issues in communities that require careful conversations, but nations have to be able to decide for themselves. 

“We can’t let the government and industry use [membership] to divide us and tear our people apart,” she said. 

B.C.’s Indigenous Rights legislation protects Indigenous Peoples’ right to determine their own identity and membership

The questions of Indigenous identity being raised by Coastal GasLink’s lawyer come at a sensitive time for British Columbia, as the province makes slow progress in its efforts to legislate Indigenous Rights into its legal frameworks.

In December of 2019, B.C. introduced new legislation to ensure B.C.’s laws are aligned with the United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP, through the Declaration on the Rights of Indigenous Peoples Act.

Since then, the province has failed to make substantial gains, but on Nov. 17 Attorney General David Eby tabled two bills: one to add Indigenous identity as a protected ground against discrimination and the other to amend the Interpretation Act to “make it clear that all provincial laws uphold, and do not diminish, the rights of Indigenous people protected under section 35 of the Canadian Constitution.”

“These two legislative amendments represent important steps to implement the Declaration on the Rights of Indigenous Peoples Act and ensure B.C. laws are interpreted using the UN Declaration on the Rights of Indigenous Peoples as a guide,” Eby said in a press release.

In the declaration, Article 33 states Indigenous Peoples “have the right to determine their own identity or membership in accordance with their customs and traditions” while retaining citizenship in their country.

“Indigenous Peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures,” it reads.

The Narwhal asked the Ministry of Indigenous Relations and Reconciliation for comment on Coastal GasLink’s questions about Indigenous identity in court. The ministry passed on The Narwhal’s request to the Ministry of Attorney General, which told The Narwhal it was unable to comment on specific matters before the court.

Two years after B.C. passed its landmark Indigenous Rights act, has anything changed?

Alexander said it is problematic that lower courts tend not to dive into or make determinations on Indigenous Rights, which can give rise to rulings that violate Indigenous law.

“I think they’re breaching the UN Declaration on the Rights of Indigenous Peoples because at its very core, it is about self-determination,” he said.

Alexander said case law can breach the declaration by not balancing Wet’suwet’en law and common law equally. 

Indigenous law is protected under the constitution, but Indigenous legal orders also stand on their own, he explained. 

‘It’s our ancestral lands’

Alec said her release conditions keep coming back to her mind. She keeps a printed copy of them in her pocket. The conditions outline how she must keep 10 metres away from any Coastal GasLink facilities or active work sites. She cannot access the RCMP’s established exclusion zone, created to enforce the injunction, except to hunt, fish or trap or for cultural purposes. She said when she received them she broke down crying because of how they restrict her free movement on her own territory.

The cabin Alec was living in at the time of her arrest with her partner, Corey Jocko, was destroyed by fire after they were taken to jail. She found out after she was released.

“That was our home,” she said. “I miss it out there. It’s our ancestral lands.”

At the bail hearing Coastal GasLink’s lawyer argued there was no need for individuals to access the pipeline right-of-way, since there was no infrastructure in the area. Wickham said the argument emulated terra nullius, a colonial concept that empty land is free for a state to occupy. The principle of terra nullius and the idea that Indigenous-occupied landscapes are essentially “empty” in the colonial mindset has been used to justify settlement in Canada, even though the land was never unoccupied. The Supreme Court of Canada has acknowledged terra nullius never applied in Canada. 

“There’s huge infrastructure at the [Unist’ot’en] healing centre,” Wickham said. “We have a village site by the river. We have the checkpoint. We have cabins that are occupied. And they just said, ‘nope, there’s no reason for anybody to be there,’ ” she said.

Wickham said the recognition of one’s identity as Wet’suwet’en is closely tied to the recognition of rights to the land. She pointed to the Delgamuukw decision, in which leaders from the Wet’suwet’en and Gitxsan Nations fought in court to prove they have unextinguished title to their territories. The Supreme Court of Canada also recognized the importance of oral history and accepted it as evidence at trial for the first time.

“Our Elders and our ancestors spent a decade going to court providing evidence about our system,” she said. “They did that at great cost and great sacrifice, away from their families, being disrespected and humiliated by the courts.” 

“They did that so we wouldn’t have to prove this over and over again, who we are as Wet’suwet’en people.”