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.

By Ash Kelly and Brielle Morgan for Discourse Media. For a full, interactive version of this investigative piece, visit Discourse Media.

For more than 5,000 years, First Nations people have collected plants and harvested red cedar on Lelu Island, which sits where the Skeena River meets the Pacific Ocean near Prince Rupert in northern British Columbia. Adjacent to some of the most critical salmon habitat on the West Coast, Lelu Island is considered so valuable that, according to local Indigenous oral histories, Indigenous tribes have long battled to control it.

Not much has changed today — except that the battleground has shifted to Victoria and Ottawa. Prime Minister Justin Trudeau’s government is set to make a decision about Pacific NorthWest LNG (PNW LNG)’s proposed $36-billion liquefied natural gas (LNG) project, which is majority-owned by the Malaysian energy company Petronas. That decision could come at any time, although deliberations are likely to stretch into the fall. If built, the project will link a pipeline that weaves through traditional First Nations territories with a conversion plant and shipping terminal on Lelu Island.

The stakes are high for B.C. Premier Christy Clark, who, already campaigning for re-election in May 2017, has promised big on jobs and tax revenue she says LNG development will generate. She claims PNW LNG has wide backing among B.C. First Nations, whose support is critical. At a press conference on June 3, Clark said, “It’s important that people in Vancouver and across the country see how much support there is for LNG in these communities.”

Last year, members of the Lax Kw’alaams First Nation, whose traditional territory includes Lelu Island, overwhelmingly rejected the proposed development on the island — and almost $1.2 billion in promised benefits. Clark claims a breakthrough with Lax Kw’alaams occurred earlier this spring. “The Lax Kw’alaams voted massively in favour of supporting LNG, with some conditions,” she stated at the June 3 press conference.

But locals in the tiny town of Lax Kw’alaams, many too afraid to put their view on the record, say no such vote occurred. The only vote on the proposed project that Discourse Media was able to substantiate is the vote that occurred at a series of meetings in May 2015, when a majority of community members voted against the benefit agreement proposed by PNW LNG.

The political pressure on Lax Kw’alaams since then has been immense. Locals describe a community deeply divided over its future, desperate not to miss out on the economic opportunity LNG could provide, but with a majority opposed to developing Lelu Island. “Everybody’s bickering and fighting. It is tearing the whole village apart,” says Corinne Dudoward, who has lived in Lax Kw’alaams all her life save for a few years off reserve to attend school.

With sparring between elected and traditional power brokers, death threats and alleged vandalism, a culture of fear has left community members feeling they haven’t been heard by provincial or federal politicians. Pledges by both governments to meaningfully consult with the Lax Kw’alaams people have been broken, according to many community members.

Flora Bank, an eelgrass habitat in the Skeena River estuary, is adjacent to Lelu Island. Research found that Flora Bank contains higher abundances of juvenile salmon than other locations in the estuary. Photo: Tavish Campbell

While Trudeau has a relationship to foster with Clark, he has also promised a renewed “nation-to-nation” relationship with Indigenous peoples based on “recognition of rights, respect, co-operation and partnership,” as stated in his mandate letters to ministers in November. He reiterated this when Minister of Indigenous and Northern Affairs Carolyn Bennett committed to the U.N. Declaration of the Rights of Indigenous Peoples (UNDRIP) in May.

Central to UNDRIP is Indigenous peoples’ right to “free, prior and informed consent” when it comes to proposals like PNW LNG. “Especially in cases of large-scale development or investment projects that may have a major, severe or adverse impact on Indigenous Peoples’ territories, consent is necessary,” wrote Indigenous legal scholar Dalee Sambo Dorough in Northern Public Affairs. “The state must provide all relevant information well in advance of the decision making.”

“It means developing and maintaining a more balanced and respectful relationship,” says Senator Murray Sinclair, former chair of the Truth and Reconciliation Commission. “It’s more than simply saying, ‘We’re going to stop taking your land away from you unless it’s really important.’” He says projects like PNW LNG are an opportunity for Trudeau to demonstrate his commitment to reconciliation.

In May, just two days after Bennett drew a standing ovation at the U.N. for committing to UNDRIP, a group of First Nations people from the Skeena region also stood before the U.N.’s Permanent Forum on Indigenous Issues. “Right now, in our ancestral lands, everything the Trudeau government has pledged to get right with Canada’s Indigenous peoples is in danger of going very, very wrong,” said John Ridsdale, a Hereditary Chief of the Wet’suwet’en First Nation. “It is 2016, and Petronas is the wrong project in the wrong place at the wrong time.”

The one thing everyone seems to agree on? That, had the consultation process been handled differently, free, prior and informed consent could have been achieved, PNW LNG could have been a success story for the Lax Kw’alaams, Petronas, Clark and Trudeau — and Lelu Island could have been protected for the use of future generations of Lax Kw’alaams people. Instead, it descended into one of the most polarized and contentious resource development battles that Canada has witnessed in years.

“Energy projects can proceed in a way that does achieve the purposes of reconciliation,” says Sinclair, “but not the way that we’re currently doing them.”

The Battle for Lelu Island Lands in Ottawa

PNW LNG has become one of the most contentious resource development battles that Canada has witnessed in years, and the battlefront has shifted to Ottawa.

Earlier this year, Premier Clark, four cabinet ministers and a delegation of over 80 people including industry representatives and First Nations travelled to Ottawa for what was dubbed a “trade mission.” PNW LNG has registered seven new lobbyists since the Liberals’ November election. First Nations groups opposing the development have also made multiple trips to Ottawa and the U.N., supported in part by conservation groups.

In addition to their conflicting demands, Trudeau’s government must weigh climate commitments made at the Paris Climate Conference at the end of 2015. The Canadian Environmental Assessment Agency has concluded that PNW LNG is “likely to cause significant adverse environmental effects … as a result of greenhouse gas emissions.” In fact, in late May, nearly 100 scientists said in a group letter to Minister of Environment and Climate Change Catherine McKenna that PNW LNG “would add between 18.5 per cent and 22.5 per cent to [B.C.’s] total GHG emissions,” making it “virtually impossible for B.C. to meet its GHG emission reduction targets.”

Divide and Conquer: The Threatened Community at the Heart of the PNW #LNG Project https://t.co/yLdU5i06F9 @CFNGBI pic.twitter.com/TyITpjqwv7

— DeSmog Canada (@DeSmogCanada) July 7, 2016

Not Prior, Not Informed — Not Free

It’s unclear whether First Nations were consulted before key decisions were made concerning PNW LNG. Shaun Stevenson, Prince Rupert Port Authority (PRPA)’s vice president of trade development, says the PRPA acknowledges that the port exists on traditional territory and expects developers to engage with First Nations as “early as possible.” A 2014 report by PNW LNG suggests initial contact with Lax Kw’alaams occurred in December 2012. But at least six months prior, Petronas had already earmarked Lelu Island for its plant and signed a feasibility agreement with the PRPA.

Community members in Lax Kw’alaams were open to development that would bring economic opportunity to the region, but they were concerned about how developing Lelu Island would impact salmon. Three years after being initially contacted, plans to locate the LNG plant on Lelu Island seemed set in stone, even though band members had received little response to their concerns about environmental impacts. And so, in spring 2015, some of them occupied the island in protest.

Ken Lawson and his wife, Patty Dudoward, are on the frontline of this occupation. A trucker and a fisherman by trade, Lawson never imagined he and Dudoward would spend the better part of a year shuffling between their home in Prince Rupert and the camp on Lelu Island, organizing food and fuel and assisting other activists at the occupation. As a house leader in the Gitwilgyoots tribe, one of the Nine Allied Tribes of Lax Kw’alaams, Lawson is often called upon by his hereditary chief to speak for the community.

Lawson isn’t against resource development in the region. His opposition hinges on the project’s impact on salmon — a staple for First Nations, tourism and the fishing industry. The Skeena River watershed is “one of the largest salmon watersheds in the world, second only to the Fraser River in its capacity to produce sockeye salmon,” according to theCanadian Environmental Assessment Agency (CEAA).

In April 2015, PNW LNG presented Lax Kw’alaams with a benefits proposal totalling nearly $1.2 billion in payments and land transfers that would be delivered over 40 years. The mayor of Lax Kw’alaams at the time was Garry Reece. Wanting to better understand the impacts on salmon and dissatisfied by information provided by PNW LNG, Reece’s band council commissioned consultant and geologist Patrick McLaren and Simon Fraser University biologist Jonathan Moore. Their research found that Lelu Island’s proximity to Flora Bank, a sandbar where juvenile salmon spend time transitioning between the river and the ocean, meant that development on the island posed significant threats to the salmon run.

The CEAA’s draft report to the federal government ran counter to McLaren’s and Moore’s findings, arguing that “taking into consideration mitigation measures … the Project is not likely to cause significant adverse environmental effects on marine fish and fish habitat.” Experts have called into question the CEAA’s findings. On March 11, a group of 134 scientists submitted a letter calling on Minister of Environment and Climate Change Catherine McKenna to reject the CEAA’s draft report; they said the government report is “scientifically flawed and represents an insufficient base for decision-making.”

In May 2015, Lax Kw’alaams-commissioned scientists and PNW LNG representatives presented their contrasting views at a series of public meetings called by Mayor Reece to consider PNW LNG’s benefits proposal. The meetings occurred in Lax Kw’alaams, Prince Rupert and Vancouver (the vast majority of band members live outside of Lax Kw’alaams).

In all three locations, large majorities of attendees rejected the deal. Two days after the final vote in Vancouver, the band council released a statement: the band would not support LNG on Lelu Island, but was open to collaborating to find an alternative plan. “Lax Kw’alaams is open to business, to development, and to LNG (including PNW). It is not open to development proximate to Flora Bank,” the statement reads.

Those occupying Lelu Island felt bolstered by the vote, confident that they represented the view of their community. “What it’s all about for Christy Clark is the jobs, and I get that. There aren’t a whole lot of jobs around,” says Ken Lawson from his vantage point on Lelu Island. “They just simply can’t put it on Flora Bank, Lelu Island. Put it somewhere else.”

“If they had asked where to put this in the first place, [the community’s] answer would probably be different,” says Lawson. “There would have been proper consultation — which there wasn’t.”

PNW LNG didn’t take up Lax Kw’alaams on its offer to find another location. But that didn’t mean the deal was off.

Grant Wesley, son of Malcolm Sampson, says he and his family are leaving Lax Kw’alaams because they don’t know who they can trust anymore. They’ll decide where to go once his girlfriend knows where she’ll be attending school to become a teacher. Wesley’s father says he’s been targeted for his anti-LNG views. Photo: Ash Kelly

The Premier Doubles Down

Premier Clark’s confidence in the venture was not lessened by Lax Kw’alaams’ rejection, according to reports by APTN and CBC. She reportedly said it was “only a matter of time” until a deal was reached with Lax Kw’alaams and the rejection was nothing more than “a bump in the road.”

At the Western Premiers’ Conference in May 2016, Discourse Media asked Clark what responsibility her government has to Lax Kw’alaams. She responded: “Do we want to create jobs for First Nations people and others in the country or do we want to have no change at all?”

Her comments echoed the message the B.C. government has been sending for months: it’s either the Petronas plant on Lelu Island or no economic progress at all. That kind of ultimatum has left people living in the region fearful of missing out on a limited-time offer, yet at the same time feeling that their concerns about the project’s location have been ignored.

Four of the five First Nations that the CEAA and the B.C. Environmental Assessment Office required PNW LNG to consult with — Metlakatla, Kitselas, Kitsumkalum and Gitxaala — have signed either impact benefit agreements (securing payouts for their communities along with environmental commitments from PNW LNG) or term sheets, which are often a precursor to impact benefit agreements.

With Lax Kw’alaams emerging as the sole holdout among those five First Nations (some upriver tribes that harvest Skeena salmon, including the Wet’suwet’en and Gitanyow, are also opposed), Lawson and Dudoward found themselves under increasing pressure from locals who felt they and their fellow occupiers were standing in the way of jobs and prosperity. “It feels like Ken’s and [my] heads are on the chopping block,” Dudoward says. They also acknowledge a lack of visible public support for their position, which they find understandable, but frustrating. “People are afraid of what could happen to them if they helped us out,” said Lawson. “They have to protect themselves and their jobs. I don’t hold that against anybody.”

Lawson himself is paying a toll for standing up. “I’ve logged all my life and I’ve run trucks for the last 12 years,” says Lawson. “The business has suffered… big time.”

In a smoke-filled teepee on Lelu Island, where the occupiers often debrief, Lawson talks about the recent breakdown of one of the trucks in his commercial fleet. Under the hood, he found a hole in a component behind the engine, one he believes was an act of sabotage. After inspecting the damaged part, his insurance company agreed it didn’t appear to be a wear hole. An investigation is underway.

Malcolm Sampson, a Lax Kw’alaams fisherman for more than 40 years and an outspoken activist against PNW LNG, also became a target for those in the community who disagreed with him. He recalls one phone call that made this particularly clear.

“You see that big hotel sitting there?” he asks, pointing to a modest, weathered building he owns. “I was threatened they were gonna burn it down. A man threatened to come up to my house and he was gonna shoot me and all my children,” he says. “My heart fell to my knees; I almost cried.”

Police in Prince Rupert say they have seen an increase in calls resulting from the controversial nature of these large-scale LNG projects. Sgt. Jagdev Uppal of the Prince Rupert RCMP adds: “This has included marine-based offences such as dangerous operation of motor vessels and uttering threats (complaints).”

James Anaya, U.N. Special Rapporteur on the rights of Indigenous peoples, could have been describing the situation playing out in Lax Kw’alaams when he criticized Canada’s relationship with Indigenous people in a 2014 report. When consultation does not take place in a consistent and timely manner, he wrote, the result is “an atmosphere of contentiousness and mistrust that is conducive neither to beneficial economic development nor social peace.”

Murray Smith, a house leader from the Gitwilgyoots Tribe, believes PNW LNG proponents are stoking divisions in his community by taking advantage of internal governance challenges. “They look for the weak link, people that are hungry for money,” he says. “They see that they’re poor and say, ‘Sign your name here.’”

A Sudden Flip-flop

Despite this mounting pressure, elected and hereditary leaders remained relatively united in their opposition to LNG development on Lelu Island — until a new mayor and council were elected in November 2015.

At first, the newly elected leaders maintained the community’s position. Mayor John Helin even submitted a letter to the CEAA reiterating the band’s rejection of the benefit deal on March 7, 2016.

But eight days later, in a move that hereditary leaders call a betrayal, Helin submitted a second letter to the CEAA that contradicted his earlier letter and offered conditional support for a project. The letter was dated March 15, when several elected councillors were away on an annual kelp-gathering trip on Digby Island.

Community members in Lax Kw’alaams were shocked. According to Smith, “the last time we had a band meeting was in a previous administration,” before Helin’s November election. Many Lax Kw’alaams community members corroborated this.

The band council is not required under lawto make financial or governance documentation available to the public. But, according to former mayor Reece, a band member can request meeting minutes at the band council office. So on April 8, after a prolonged silence from the elected council, fisherman Malcolm Sampson went to the band office and requested any relevant minutes from meetings concerning the letter.

Instead of providing the requested documentation, according to Sampson, the band council shut down the office and an impromptu protest ensued that resulted in someone calling the RCMP. By the time police arrived, there was little action. Const. Monte Webb describes the protest as “three cops and thirty people standing around just talking.”

Mayor Helin declined to comment in response to multiple interview requests made by phone, email and text message. When approached by Discourse Media reporters in person, he held his hand up and said “no.”

Discourse Media also reached out to each band councillor with publicly listed contact information. Only councillor Stan Dennis responded. Dennis says he is not at liberty to provide details on how the council operates, but stated for the record: “I am still standing against this development on Lelu.”

Political Talking Points

Helin’s contentious letter became a speaking point for Premier Clark. At the Western Premiers’ Conference in early May, she said Lax Kw’alaams leadership “voted overwhelmingly in favour of moving forward into the next stage of this agreement on LNG.”

In multiple interview requests, Discourse Media asked Clark to elaborate. In an emailed response, the premier’s office stated, “First Nation officials carried out their own internal engagement processes prior to their vote and letter of support to the federal government.”

Then, in a follow-up phone call, a spokesperson for the premier who spoke on background explained that Clark may have misspoken when she referred to a “leadership” vote and that it was in fact a public meeting where the community voted 244 to three in favour of developing Lelu Island.

In written statements, the province has maintained that “Lax Kw’alaams First Nation conducted its own community engagement process and vote, prior to its letter being submitted,” but how many people voted and whether they were leadership or band members remain unclear. At the June 3 press conference, Clark said, “There will always be some people who disagree and that’s the nature of a democratic society. But in the Lax Kw’alaams, when they took that vote amongst the chiefs and the vast majority — I think over 150 people voted in favour of it and three voted against — at some point you have to say the people have spoken.”

But have they? Neither the premier’s office nor the band council provided any documentation of either a band council or community vote in response to multiple requests. Discourse Media has been unable to identify a single community member who attended or was aware of a public meeting that was supposedly attended by between 150 and 247 people.

PNW LNG declined multiple interview requests and provided a written statement: “PNW LNG is working collaboratively and constructively with local First Nations. To date, PNW LNG has received conditional support from all local First Nations within the project area. We do not comment on band governance issues.”

Malcolm Sampson hasn’t shied away from pressing council to explain what happened in those eight days between letters to the CEAA; he is circulating a petition demanding answers and organizes occasional protests outside the band office. But he’s not sure how long he can keep it up; he no longer feels safe in the community.

“I’m going to try and sell what I can here and then maybe move on. We don’t feel liked here,” says Sampson. “It’s sad. It hurts to leave because I’ve lived here all my life.”

Image: Ash Kelly

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