The B.C. government and corporate lobbyists representing major resource industries sought the “surrender” of First Nations land rights immediately following the Delgamuukw decision, a precedent-setting legal ruling that established Aboriginal title to unceded land, according to Freedom of Information (FOI) documents obtained by The Narwhal.

The records, from B.C.’s Ministry of Aboriginal Affairs, provide a glimpse for the first time of a corporate lobbying effort urging government to push First Nations to surrender their newly recognized title rights through modern treaties to achieve “certainty” for commercial interests.

Internal emails, memos and confidential briefing notes also show that, immediately after the Delgamuukw decision came down from the Supreme Court of Canada on Dec. 11, 1997, B.C. government officials discussed tactics to fight land rights with legal challenges, to curb direct action or litigation by First Nations and to use federal money intended for the healing of residential school survivors to make treaty negotiations more attractive. 

The push for “certainty” for industry operating in B.C. remains a strong focus for government to this day.

The Delgamuukw decision — prompted by a case launched in the 1980s by Wet’suwet’en hereditary chiefs and the neighbouring Gitxsan Nation — cuts to the heart of the Wet’suwet’en nation’s on-going opposition to Coastal GasLink’s plan to build a 670-kilometre fracked gas pipeline through the nation’s traditional territory to LNG export facilities in Kitimat.

In the decision, Supreme Court justices declared that nations like the Wet’suwet’en, who had never signed treaties, may still hold unceded rights to their lands.

A supporter at Unist’ot’en camp in Wet’suwet’en territory Jan. 15. Arrests of supporters at the camp are expected to take place Sunday, Feb. 9. Photo: Amber Bracken / The Narwhal

The threat of Aboriginal title

In early January Wet’suwet’en hereditary chiefs issued an eviction notice to Coastal GasLink after the B.C. Supreme court extended an injunction against members of the Wet’suwet’en and their supporters who are preventing the company from accessing contested work sites along the pipeline corridor near Houston, B.C. A year earlier, in January 2019, the RCMP enforced the injunction and arrested 14 people in a controversial move that drew international attention

Days after the eviction notice was served, Wet’suwet’en hereditary chiefs met with the B.C. RCMP’s commanding officer, deputy commissioner Jennifer Strachan.

Hoping to avert a repeat of last year’s much-criticized police action, Chief Hagwilnegh (Ron Mitchell) of the Wet’suwet’en’s Small Frog clan offered the deputy commissioner a piece of advice: consult the Delgamuukw decision.

“Read that, before you give out your orders,” he recalled telling her.

Although the Delgamuukw ruling happened almost 25 years ago it is still considered one of the most important rulings on Indigenous land rights in Canadian history.

For 150 years prior to the ruling, all levels of government insisted Aboriginal title had been extinguished and thus had no impact on decision-making.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today.”

The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that, once recognized through litigation or treaty, could grant Indigenous peoples exclusive occupation and the right to require consent prior to resource development or other activities that could affect their territory.

The ruling sent shockwaves through the country, promising a transformation in Indigenous peoples’ rights to govern their ancestral territories. 

Hagwilnegh, who worked as a translator for Elders testifying in court in their Wet’suwet’en language, remembered being hopeful that Aboriginal title would be reconciled with Crown title, as the Supreme Court judges had directed.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today,” he told The Narwhal.

But the government and resource companies had other ideas.

Freda Huson, centre, and her sister, Brenda Michell, stand in ceremony while they wait for police to enforce Coastal GasLink’s injunction. Photo: Amber Bracken / The Narwhal

‘The decision makes the need for certainty through surrender all the more clear’

In a committee formed by the B.C. NDP government of Glen Clark — to allow oil and gas, forestry, cattle, real estate and mining associations to offer advice about treaty negotiations — various lobbyists pushed the government to limit the consequences of the Supreme Court decision, according to the FOI documents.

According to one memo, detailing a meeting that took place one day after the Delgamuukw ruling, Marlie Beets, then vice-president of the BC Council of Forest Industries, remarked that she had spent the previous hour “trying to calm” the CEOs she represented. 

“[Delgamuukw] has only created more uncertainty and we are very concerned by how governments will react to the court’s findings,” Beets said. “The decision makes the need for certainty through surrender all the more clear. We see no other alternative.”

A document released through Freedom of Information rules quotes Marlie Beets relaying the anxiety of CEOs with the BC Council of Forest Industries in response to the Delgamuukw decision. Beets notes the ruling makes the need for economic “certainty through surrender” of Aboriginal title “clear.”

Mike Hunter, then the president of the Fisheries Council of B.C., urged the government to “downplay the expectations that Aboriginal leaders have.”

Mary MacGregor, then director of the B.C. Cattlemen’s Association, promised that “we will be putting great pressure on the provincial government to commit to a cede, release and surrender approach.”

Several days later, a new Delgamuukw strategy team formed by the ministry noted in a memo that “the oil and gas industry in particular has expressed concern about their ability to continue to do business in the province absent a clear direction from the government on how it will address the implications of the Delgamuukw decision.”

The following spring, John Watson, then-regional B.C. director of the federal Ministry of Indian Affairs wrote in a letter that both provincial and federal governments “are under tremendous pressure to ensure that we achieve the level of certainty required to assure business and other third parties.”

Indigenous-led opposition to unwanted natural resource projects and infrastructure has been bolstered by decisions such as Delgamuukw, Haida Nation and Taku River Tlingit.

In B.C. the vast proportion of land has never been subject to treaty. Although often referred to as public or Crown land, most of these areas are the unceded homelands of Indigenous nations.

These communities are increasingly laying legal claim to their territory through the courts. A 2014 decision, for instance, granted the Tsilhqot’in nation Aboriginal title to a portion of its 438,000-hectare traditional territory. It took the Tsilhqot’in 25 years to win its legal challenge in the Supreme Court of Canada. The B.C. and federal government fought the title claim from start to finish.

Following the Delgamuukw decision, the Supreme Court indicated the Wet’suwet’en could make a similar legal claim to its 22,000 square kilometre territory. Notably, the judges urged the government to seek to reconcile Aboriginal title with Crown title through negotiations, in the spirit of what it called “the honour and good faith of the Crown.”

But the FOI documents show the priority for both B.C. and federal governments was to try to resolve the economic and legal uncertainty for resource industries seeking access to land and natural resources.

In a “certainty working group” meeting arranged by the B.C. Treaty Negotiations advisory committee, lawyer Chris Harvey warned that, post-Delgamuukw, “there is now uncertainty over whether the entire province is burdened by Aboriginal title.”

What should be sought through the treaty process, Harvey said, is “an end of Aboriginal rights and title.”

B.C. government officials, for their part, promised to accomplish this through the existing B.C. modern treaty process.

An excerpt of a fax sent on March 27, 1998, quoting lawyer Chris Harvey stating treaty rights are needed to bring about the ‘end of Aboriginal rights and title.’

‘Treaties offer the only long-term solution’

The treaty process, created in 1992, offered a way for the provincial government to forge agreements with First Nations that had never signed historic treaties.

The process drove a hard bargain for First Nations: they could relinquish rights to close to 95 per cent of their traditional territories — giving resource companies “certainty,” or uncontested access — in exchange for financial compensation and small parcels of land. 

Nations like the Wet’suwet’en, which refused to enter the B.C. treaty process, were stone-walled, Hagwilnegh told The Narwhal.

“If we sat down to talk, it didn’t go anywhere. Meanwhile, government continued to hand out licences for all sorts of things — mining, clear-cut logging and, as we see today, pipelines.”

A Gitxan supporter works to start a truck at a Wet’suwet’en re-occupation camp on Jan. 13. Photo: Amber Bracken / The Narwhal

Following Delgamuukw’s recognition of Aboriginal title, many Indigenous advocates and lawyers argued Canada should stop requiring First Nations to extinguish their rights and instead seek out shared jurisdiction that would allow Indigenous nations to develop sustainable economies.

Indeed, the FOI documents show that in the wake of the ruling, officials at the B.C. Ministry of Aboriginal Affairs expressed fear that the “credibility of the treaty process is in question.”

But rather than shift its approach, the ministry deliberated how to accelerate negotiations and “[revamp] the treaty process to create faster certainty in the areas of lands and resources.”

The FOI documents include draft speaking notes prepared for then-B.C. Minister of Aboriginal Affairs John Cashore in advance of a public forum with First Nations in late 1998.

The notes show Cashore’s prepared lines, which state, “there is no doubt that Delgamuukw also signals a need for a change in the way we do business.”

“The decision confirmed we are on the right track by negotiating instead of litigating,” the bullet-point speaking notes state. “We still believe that treaties offer the only long-term solution to gaining certainty around Aboriginal title and Aboriginal rights.”

But in private, government bureaucrats discussed several hardball tactics, including litigation, the FOI documents reveal.

The bureaucrats proposed the idea of signing “interim agreements” with First Nations that would have them “agree to support economic stability in British Columbia by refraining from direct action or litigation,” without which negotiations would not proceed.

“Make sure we take advantage of potential litigation and maybe even initiate where we feel it could help us,” Doug Caul, then-director of Aboriginal affairs at the B.C. Ministry of Forests, suggested as a possible tactic in an email exchange with colleagues from different provincial ministries.

Caul also noted the province could strike back with a court challenge: “This will be controversial, but it seems likely that Delgamuukw will spawn more litigation,” he said. “Future litigation could help [d]efine the scope of title.” 

“I am not suggesting we pick a fight,” Caul wrote on Dec. 17, 1997, less than one week after the Delgamuukw decision, “but that we make sure we take advantage of potential litigation and may be (sic) even initiate where we feel it it (sic) could help us, instead of waiting and reacting.” 

An excerpt from an email written by Doug Caul less than one week after the Delgamuukw decision, suggesting government “take advantage of potential litigation” to limit the scope of the ruling’s significance for title rights.

Today, Caul is the deputy minister of B.C.’s Ministry of Indigenous Relations and Reconciliation, responsible for overseeing Bill 41, B.C.’s new legislation contending with the United Nations Declaration on the Rights of Indigenous Peoples.

Escalating government tactics to ‘sweeten the deal’

In a memo to the B.C. Ministry of Aboriginal Affairs, provincial treaty negotiators suggested using federal funds intended for the healing of residential school survivors to advance treaty negotiations.

As part of the federal response to the Royal Commission on Aboriginal Peoples, the Liberal government of Jean Chretien had established the Aboriginal Healing Foundation with a $350 million dollar grant in 1998.

In order to “sweeten the deal” offered by the B.C. treaty process, B.C. negotiators suggested asking the federal government to prioritize healing money for First Nations who engaged in treaty negotiations.

Internal documents from B.C. treaty negotiators recommending healing funds for residential school survivors be used to “sweeten the deal” of modern treaties.

“Were the federal government to be strategic in how this money were spent in British Columbia, then they would prioritize those First Nations with which they are having treaty negotiations as the major beneficiaries of this program,” the treaty negotiators wrote. “In addition, the money could be made available as a ‘down payment’ on an eventual treaty and given credit accordingly.” 

It is unclear whether the federal government ever acted or received a request to act on this idea.

The documents also show the provincial government monitored the activities of First Nations in B.C.’s interior who were critical of the treaty process. When the Union of B.C. Indian Chiefs marched in downtown Vancouver on the first year anniversary of Delgamuukw, officials prepared media lines to highlight how they had “moved forward on a number of fronts.” 

Documents reveal that upon the one-year anniversary of the Delgamuukw decision, government officials considered “monitoring blockades” a priority action. The documents also note a strategic priority to ensure the Ministry of Aboriginal Affairs update the Ministry of the Attorney General and the RCMP on “affected regions.”

The ‘surrender approach’ continues

UBC Indigenous legal scholar Gordon Christie called the FOI documents “illuminating.”

“It confirms what has been common knowledge in Indigenous circles — that the approach that emerged out of these discussions has been pursued by both provincial and federal governments for decades,” Christie said.

Mohawk policy analyst Russell Diabo, who was working with interior B.C. First Nations when the Delgamuukw decision came down, said the “continuities are clear” over the decades.

“The governments have shown their main aim remains keeping powerful business interests happy and containing the power of Aboriginal rights and title, rather than moving toward a respectful relationship.”

United Nations bodies have repeatedly criticized the Canadian government for trying to dress up old policies that have been rejected by First Nations.

The UN Committee on Economic, Social and Cultural Rights noted in 2006 it “remains concerned that the new approaches, namely the ‘modified rights model’ and the ‘non-assertion model,’ do not differ much from the extinguishment and surrender approach.”

Despite the enormous effort by the B.C. government, treaty negotiations have resulted in only eight modern treaties that “modify” or “surrender” their Aboriginal title.

The Trudeau and Horgan governments have introduced an array of new policy mechanisms and “reconciliation” agreements, but Hagwilnegh said they promote essentially the same end result and remain unacceptable to the Wet’suwet’en.

“The government never likes it when we bring up Delgamuukw,” he said. “They clam up. And on those occasions when we have been able to educate government officials, the next day, poof, we get new officials sent to us.”

When contacted by The Narwhal, instead of answering questions the Ministry of Indigenous Relations and Reconciliation referred to a press release stating it is “basing negotiations on the recognition and continuation of rights without those rights being modified, surrendered or extinguished when a treaty is signed.” 

An imitation flag that reads “reconciliation is dead” burns on a funeral pyre as a small envoy of police arrive at Unist’ot’en Healing Centre on Saturday, Feb 8. Photo: Amber Bracken / The Narwhal

“The new policy will enable flexible, innovative and collaborative approaches that improve how treaties are reached in B.C.,” the release said.

Diabo said the modern approach bears an uncomfortable resemblance to older methods. “Though the B.C. and federal government never tires of varnishing their approach to convince us that it’s brand sparkling new, their end-game remains to extract surrender of Aboriginal title to Crown sovereignty,” he told The Narwhal. 

In the years since Delgamuukw, some First Nations have chosen further litigation or direct action to uphold the rights recognized in the ruling.

Diabo noted the response from the government has often been criminalization, pointing to the arrest of Wet’suwet’en land defenders in January 2019 as the latest in a line of policing actions taken against Indigenous peoples across Canada.

“The police lay down the law — or what they think the law is,” said Hagwilnegh, who has educated Wet’suwet’en youth about the meaning of the Delgamuukw court decision and worked with community members to map creeks, forests and hills across the nation’s traditional territory.

“But Delgamuukw was brought down by the Supreme Court, the highest court of Canada.”

Police make an arrest January 2019 while enforcing the injunction filed by Coastal GasLink at the Gidimt’en checkpoint. Photo: Amber Bracken

Over the past several weeks, Hagwilnegh, acting as the police liaison for the hereditary chiefs, said he has continued to speak on the phone with RCMP deputy commissioner Strachan, whom the B.C. RCMP declined to make available for comment.

Hagwilnegh said Strachan took his advice and read up on Delgamuukw and he thinks she has listened more than the former commissioner, who oversaw the raid on Wet’suwet’en territory last year. 

“But after our Elders told the world who we are and how we look after the land, as caretakers of the territory, is that the best the government can do?” Hagwilnegh asked. “It is long past time they respect their own laws.”

Update Monday, Feb. 10 at 10:16 a.m. PST. This article was updated to add the phrase “once recognized through litigation or treaty” to this sentence: “The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that, once recognized through litigation or treaty, could grant Indigenous peoples exclusive occupation and the right to require consent prior to resource development or other activities that could affect their territory.” The sentence previously read: “The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that could grant Indigenous peoples exclusive occupation and require consent prior to resource development or other activities that could affect their territory.” This update also removed two references to ‘federal’ when referring to the Supreme Court of Canada. 

Update Saturday, March 7 at 12:54 p.m. PST. This article was updated to reflect the fact that the vast majority of land in B.C. is not subject to treaty, but this does not apply to Quebec, Yukon and the Northwest Territories as previously stated. A separate update was made to clarify that the Tsilhqot’in First Nation won title to a portion of the nation’s 438,000-hectare traditional territory.

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The arrest last week of 14 pipeline protesters raises serious issues about the role of courts and police in disputes over Indigenous land.

The protesters were participating in a blockade of an access road to the Coastal GasLink pipeline project near Houston, B.C. In December, Coastal obtained an interim injunction from the B.C. Supreme Court ordering the protesters to remove the blockades.

When the protesters refused and negotiations failed, the RCMP moved in and made the arrests for alleged violation of the injunction.

The access road and this section of the pipeline are on land that the Wet’suwet’en Nation claim as part of their traditional territory. After a decade in court, the Wet’suwet’en won a significant victory in 1997 in the Delgamuukw case. While not deciding the substantive issues, the Supreme Court of Canada ruled that Indigenous nations that can prove they were in exclusive possession of land at the time of Crown assertion of sovereignty have constitutionally protected Aboriginal title.

The Supreme Court applied the Delgamuukw decision in 2014 in the Tsilhqot’in Nation case. The court ruled that the Tsilhqot’in have Aboriginal title to the portion of their traditional territory in the Interior of B.C. where they had proven exclusive occupation.

Significantly, the trial judge and B.C. Court of Appeal decided that this title is vested in the Tsilhqot’in Nation as a whole, not in the bands that exercise powers delegated to them by the federal Indian Act. This ruling was accepted by the Supreme Court.

This means that decisions regarding the Tsilhqot’in’s Aboriginal title land need to be made by their traditional government that exercises inherent jurisdiction, not by individual band councils because they do not have authority to make decisions for the nation.

In the context of the current protests, the Wet’suwet’en have a claim to the land in question by virtue of the Delgamuukw and Tsilhqot’in decisions.

In opposition, the province claims the same land as Crown land. A dispute over title to land is a civil — not a criminal — matter. If not settled by agreement, the courts end up resolving these disputes. In this case, no such resolution has taken place.

Instead, the province has acted as though this were Crown land and has authorized use of it for a pipeline project that the traditional Wet’suwet’en government opposes.

Based on Tsilhqot’in Nation, decisions on land use outside of reserves have to be made by traditional governments, not band councils. So the fact that Wet’suwet’en band councils may have approved the project is irrelevant.

Courts can issue interim injunctions in land disputes, authorizing one side to act as though it owns the land until the matter is finally resolved. Courts grant these injunctions mainly on the basis of balance of convenience — which party will suffer the most if the injunction is or is not granted.

Pipelines are short-term development projects whose environmental consequences make them highly controversial. The Wet’suwet’en, on the other hand, have been governing their territory in environmentally respectful and sustainable ways for thousands of years. So how can the balance of convenience favour a resource exploitation company in these circumstances?

Projects like this on Indigenous territories should not take place without the free, prior, informed consent of the people concerned, as required by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has endorsed and the Trudeau government has promised to implement.

Nor should the police be placed in the awkward position, which many of them likely find uncomfortable, of having to arrest peaceful protesters involved in a civil, not criminal, matter.

The Supreme Court has said repeatedly that Indigenous claims need to be settled by respectful negotiations leading to reconciliation. The court injunction and recent arrests do just the opposite.

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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.

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In a case that faced three courts and spanned more than two decades, the Tsilhqot’in First Nation of British Columbia’s interior won an unprecedented Supreme Court of Canada decision last week granting them title to 1,750 square kilometres of land. 

“We take this time to join hands and celebrate a new relationship with Canada,” Chief William said. “We are reminded of our elders who are no longer with us. First and foremost we need to say sechanalyagh (thank you) to our Tsilhqot’in Elders, many of whom testified courageously in the courts. We are completing this journey for them and our youth. Our strength comes from those who surround us, those who celebrate with us, those who drum with us.”

First awarding recognition of the right to hunt, fish and trap on their traditional territory, then spring boarding off the historic Delgamuuk’w decision in 1997 that recognized oral history as admissible evidence requiring no further corroboration, Justice David Vickers of the B.C. Supreme Court ruled in 2007 that the nation could prove title to roughly half the original claim area. Vickers also ruled that both provincial and federal governments were failing in their constitutional obligation to the nation, and that the B.C. government had infringed upon the rights and title of the Tsilhqot’in people.

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