Between the Site C dam, Kinder Morgan Trans Mountain pipeline and the Pacific NorthWest liquefied natural gas (LNG) export facility, it’s hard to keep track of all the projects that have been approved in B.C. But for First Nations that will be affected by the Pacific NorthWest LNG terminal and pipelines, the environmental and cultural impacts are impossible to escape.

In what is now the fourth federal lawsuit filed against the federal government’s approval of the $36 billion LNG project, two Gitxsan Nation hereditary chiefs have filed a judicial review arguing that Pacific NorthWest LNG infringes on their Aboriginal fishing rights.

In October of last year, judicial reviews were also filed in federal court by the Gitanyow and Gitwilgyoots First Nations, as well as the SkeenaWild Conservation Trust.

The main concern? Salmon. Specifically, salmon stocks in the Skeena watershed, which supports Canada's second-largest salmon run. The LNG export terminal is planned for Lelu Island, near Prince Rupert, a site the federal government studied 40 years ago and found unsuitable or port development.  

“Lelu Island is an area that is very, very unique,” explained Yvonne Lattie, hereditary chief of the Gwininitxw house group in the Gitxsan First Nation and one of the plaintiffs in the judicial review.

“It has a pre-glacial shelf where the eelgrass grow, which is vital for the survival of the little smolts (a smolt is a salmon that is getting ready to go out to sea).”

Salmon need to get used to the salt water before they make their way out to sea, in a process that can take up to six weeks. This means they’re susceptible to changes on the Flora Bank, where Petronas — a Malaysian based company that holds a 62-per-cent interest in Pacific NorthWest LNG — is hoping to build off-loading terminals.

“If we do not have Lelu island, if we do not have the eelgrass, our salmon will not survive. Lelu island is vital in the survival of the salmon and in the survival of the aboriginal people that live on the Skeena,” Lattie added.

The Gitxsan First Nation has fished salmon on the Skeena for generations, but Lattie explained that since Lelu Island is not technically their territory, the Canadian Environmental Assessment Agency decided the Gitxsan wouldn’t be impacted by the LNG terminal. Studies conducted by both the Gwininitxw house and Simon Fraser University contradict that assessment.

A study conducted by Simon Fraser University professor Jonathan Moore found that salmon on the Skeena River originate from 40 different populations, spanning more First Nations territories than those consulted by the government.

The First Nations have partnered with RAVEN Trust to raise funds to see the lawsuits through. Last week they held a fundraiser in East Vancouver where hereditary chiefs and environmental activists were joined onstage by Grand Chief Stewart Philip from the Union of BC Indian Chiefs.

Communities Divided by 'Secretive Deals'

Richard Wright, spokesperson for uncle Charlie Wright — hereditary chief of the Luutkudziiwus house group and second plaintiff in the federal lawsuit against Ottawa and Petronas — says the Canadian Environmental Assessment Agency chose to consult with the Gitxsan Development Corporation, who Wright said have no aboriginal land rights or a mandate to represent the Gitxsan First Nation.

“Premier Clark’s secretive deals foster corruption and divide our communities but it will not avail her when our case gets to court,” Wright said.

The tensions sown within the Gitxsan Nation by the B.C. government’s push for LNG have been well documented by Discourse Media.

“They (CEAA) stopped talking to us and continued negotiating with this corporation,” explained Wright. “Afterwards [CEAA] says their study says that there will be little to no impact on the salmon, therefore little to no impacts on our rights. And that the depth of consultation will be very shallow. I said that was inadequate and that it was not up to them to determine to what extent the consultation process will go to.”

That’s when Wright decided to “shut down” his territory. He placed a large industrial gate on the only road coming in and out of the Suskwa valley, and built a large permanent camp.

“Since we've done that, we've been running youth programs out there, primarily focused on cultural revitalization and connecting youth to the land,” added Wright. He says he also started kicking surveyors out.

When contacted about these claims, the Canadian Environmental Assessment Agency (CEAA) reiterated that the Government of Canada stands behind its decision on the Pacific NorthWest LNG Project. They added that the decision to approve the project “was made following a rigorous federal environmental assessment with over 190 conditions in place to protect the environment.”

The CEAA also maintained that it consulted with Indigenous groups “based on the project’s potential impact on their potential or established Aboriginal rights or title.” Meanwhile, Pacific NorthWest LNG also says that it consulted with First Nations who are located closest to Lelu Island.

Wright and the rest of the plaintiffs hope that the judicial review will reverse the order of approval on the LNG project, and grant them the right to be properly consulted.

“We have the right and ability to manage our own rights and resources, and they're going to have to recognize that,” said Wright.

‘Our Salmon Will Not Survive’: Gitxsan Nation Raising Funds to Fight #PNWLNG in Court https://t.co/5ZdVO4jmAC #bcpoli #cdnpoli #Skeena pic.twitter.com/JbCewoUgU3

— DeSmog Canada (@DeSmogCanada) March 17, 2017

B.C. Subsidizing LNG Industry

Besides the potential harm to the Skeena watershed, some critics of the Pacific NorthWest LNG project think the project makes no sense economically.

“B.C. was late to the LNG race, renewables are cheaper now. But B.C. is subsidizing these companies as our hydro bills go up,” explained Caitlyn Vernon, a campaigner for the Sierra Club BC.

Even though the Sierra Club is not involved with the lawsuit, the environmental non-for-profit has been working to raise awareness about the Petronas project. The organization is about to publish a report about the B.C. government’s reduction of corporate tax rates for LNG.

“Industry is paying less than the cost of producing the power. And then it's hydro rate payers that are making up the difference,” explained Vernon.

“We don't need the Site C dam for existing power needs in British Columbia. We have enough power for our needs, so the only reason that we would build this would be to provide electricity to fracking and LNG facilities or for the tar sands. That's going to take 70 years to pay off and that's gonna mean increases in hydro rates for all B.C. So we're going to be paying for it.”

With a B.C. election coming up on May 9, Vernon thinks these issues will play an important role.

“This is an issue for all British Columbians, not just because of salmon or climate impact but also because we are going to be paying for these industries for generations through our taxes and our hydro rates.”

Photo: Freshwaters Illustrated

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

By Trevor Jang for Discourse Media.

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

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

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

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

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

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

The Significance of Delgamuukw 

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

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

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

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

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

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

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

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

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

“It’s bribery, more or less”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pipeline Deal Could Undermine 1997 Court Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— DeSmog Canada (@DeSmogCanada) February 8, 2017

Accusations of Corruption Followed Court Case

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

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

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

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

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

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

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

Legacy of Delgamuukw

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

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

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

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

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

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

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

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