Image by Gord Hill. Download for use here.
The International Committee of the National Lawyers Guild (NLG), the oldest and largest human rights bar in the United States, its Indigenous Peoples’ Rights Committee, and its Environmental Human Rights Committee, stand in solidarity with the sovereign Wet’suwet’en nation and its people, including the traditional Unist’ot’en (C’ihlts’ehkhyu), in their just opposition to the construction of pipelines from the Tar Sands Gigaproject and LNG from the Horn River Basin Fracturing Projects near and across their territory and sacred and ancestral lands. The government of Canada has failed to respect the national sovereignty and interests of the Wet’suwet’en and its people, has failed to respect the nation-to-nation relationship with the First Nation and Canada, and has failed to respect the Wet’suwet’en right to free, prior, and informed consent for the construction of any pipeline across their territory and lands.
We stand with the many defenders and protectors of ancestral lands, water, and spiritual, historic, and cultural resources at the Gosnell Creek and Wedzin Kwah camp and the Gitdumt’en camp along the energy corridor and currently blocking the construction of the pipelines across and near the Wet’suwet’en land and territory. In January 2019, Royal Canadian Mounted Police brutally and violently assaulted the camps and arrested 14 protections. The RCMP again appears to be in preparation for an imminent raid and the Wet’suwet’en have issued a call for legal observers and support.
The proposed pipelines include two Enbridge Northern Gateway pipelines which would run 1,177 kilometers from Alberta to Kitimate British Columbia. The twin pipelines are proposed to carry an average of 525,000 barrels per day of crude oil to the ocean and 193,000 barrels a day of condensate, a toxic kerosene-like natural gas by-product used to dilute crude oil so that it can be transported by pipeline.
The proposed pipelines include the TransCanada’s Coastal GasLink hydrofracturing gas pipeline which would run 670 kilometers from Dawson Creek to Kitimat, British Columbia. This is the same company seeking to construct the transnational KXL tar sands oil pipeline. The biggest driver of climate change in the province over the coming decades will be from the LNG industry. Fracking requires vast amounts of freshwater. One fracking project alone projects a water taking of up to 270 billion liters of water. The pipelines also include Chevron’s Pacific Trails Pipeline which would run 480 kilometers from Summit Lake to Kitimat for export to Asian markets.
As stated by Unist’ot’en Hereditary Spokesperson Freda Huson, “Our people’s belief is that we are part of the land. The land is not separate from us.” All of the pipelines threaten the watershed, as well as the plants, animals and communities that depend on them. The pipelines will cross over 1,000 streams and rivers in some of Canada’s most productive salmon habitat and has the potential through spills to seriously affect the rights of First Nations downstream of these crossings. For example, in August 2000, an oil pipeline ruptured and spilled roughly one million litres of crude oil some 21 kilometres into the Pine River which flows into the Peace River in northeastern British Columbia killing thousands of fish and birds and other animals and contaminating for years the surface and underground water supplies of downstream communities. In 2007, an Enbridge pipeline leaked and released 990,000 litres of crude oil into a wetland near Glenavon, Saskatchewan, before Enbridge could stop the flow. Between 1990 and 2005 an average of 803 pipeline failures occurred every year in the province of Alberta. The Unist’ot’en are fighting for the future health of the land and all that occupy it and for future generations. As Wet’suwet’en Hereditary Chief Denezee Na’moks testified in response to the proposed Enbridge pipeline: “This proposed project endangers our promises to our grandchildren that we would look after our land, our culture, our people for them. We cannot break this promise to our grandchildren.”
The Wet’suwet’en are the rightful caretakers and holders of the Yintah, the territories they occupied and have continued to occupy prior to the invasion of the Americas by European nations. They pre-exist the establishment of colonies by the British Empire and the creation of the nation of Canada and have never signed any treaty with nor ceded any territory or lands to the British Empire or Canada and have attempted to negotiate recognition of their ownership and jurisdiction over their territory and their self-government since the Europeans first began settling on their traditional lands in the 1800s. By 1984, British Columbia had begun to allow clear-cut logging in the territories of the Wet’suwet’en and Gitxsan First Nations and hereditary chiefs filed the landmark case, Delgamuukw v. British Columbia, 3 SCR 1010 (1997), an action claiming under indigenous laws unextinguished Aboriginal title and jurisdiction over their territories. After a trial consisting of 318 days of evidence and 56 days of closing argument in which the First Nations relied upon their oral histories, dance, song, and totems as evidence about their historical relationship with the land (the adaawk and kingax), the Canadian court in a judgment rooted in ethnocentric bias and colonial beliefs of white superiority rejected the evidence as inadmissible hearsay and unreliable and ruled that the Aboriginal rights of the Wet’suwet’en and Gitxsan to their territory and lands had been extinguished. On appeal to the Canadian Supreme Court, reversed the trial court’s decision and ruled that the European laws of evidence must place indigenous laws of evidence on an equal footing and accept the evidence of the Wet’suwet’en and Gitxsan as to their territorial claims and ruled that the province lack the power to extinguish the aboriginal rights of First Nations. The Court did not reach the questions on sovereignty and the right to self-government.
Delgamuukw was not relitigated. Instead these and other First Nations engaged in treaty negotiations with Canada. While these negotiations were proceeding, the Canadian and provincial governments continued to authorize invasions of the Wet’suwet’en territory by developers and others. In 2007, the Hereditary Chiefs of the Wet’suwet’en expressed their will to prevent all pipelines from crossing their territory. In 2008, the Wet’suwet’en unanamiously decided to opt out of the Canadian treaty making process and instead assert their inherent sovereignty and rights and title to their territory which have never been surrendered. In December 2013 and again in September 2015 and January 2020, the Wet’suwet’en Hereditary Chiefs reaffirmed their opposition to the pipelines crossing their unceded territory without their free, prior, and informed consent.
On December 13, 2019, the United Nations Committee on the Elimination of Racial Discrimination, tasked with the enforcement of the International Convention on the Elimination of All Forms of Racial Discrimination, issued Early Warning and Urgent Action declaration to Canada regarding its approval of the Trans Mountain pipeline and the Coastal GasLink pipeline and its refusal to consider the Wet’suwet’en right to free, prior, and informed consent as to any measure that may cause irreparable harm to their rights, culture, lands, territories, and way of life. The UN CERD also expressed its alarm caused by the escalating threat of violence against the Wet’suwet’en peoples and other land defenders and urged Canada to immediately cease forced eviction of the Wet’suwet’en and others at the encampments. The UN committee called upon Canada to immediately cease construction of the Trans Mountain pipeline and the Coastal GasLink pipeline and cancel all permits until free, prior, and informed consent is obtained. It urged Canada to freeze all present and future approval of large-scale development projects affecting indigenous peoples that do not enjoy free, prior, and informed consent from all indigenous peoples affected. It further recommended that Canada incorporate free, prior, and informed consent of indigenous peoples in its domestic legislation to bring it in compliance with its international human rights obligations and jurisprudence. In January 2020, the Wet’suwet’en Hereditary Chiefs submitted a formal petition to the United Nations to monitor the RCMP, the Canadian government, and Coastal GasLink actions on Wet’suwet’en traditional, unceded territory.
The acts of Canada in approving the proposed pipelines are attempted exercises of colonial power as part of and successor to the British empire. Colonialism is a violation of the law of nations and modern international law and was roundly condemned in 1960 by the United Nations General Assembly Resolution 1514 in “in all its forms and manifestations” as a violation of the collective human right of all peoples to self-determination. Colonialism was further condemned in 1963 by the International Convention on the Elimination of All Forms of Racial Discrimination, signed and ratified by Canada in 1970, as a form and manifestation of racism. The Aboriginal laws of Canada, like the federal Indian laws of the United States, are forms and manifestations of both colonialism and racism in violations of settled and fundamental principles of international human rights law.
The exercise of colonial power by the Canada in approving the proposed pipelines further violates the collective human rights of the Wet’suwet’en nation and its peoples including the right to self-determination, national sovereignty, and the right to free, prior, and informed consent as to those matters that may affect them, secured to all peoples by the Charter of the United Nations, Art. 73; the International Covenant on Civil and Political Rights, Art. 1, 3 (ICCPR); and specifically to indigenous peoples under the United Nation’s Declaration on the Rights of Indigenous Peoples, Art. 3, 4, 11, 18, 19, 27, 28, 32, 37, 40 (UN DRIP) and Convention 169 of the International Labor Organization (ILO), Art. 6; and other international instruments that the Canada has signed and ratified or have become binding customary international law. Canada adopted the UN DRIP in 2016 but has yet to implement it in its domestic law. On November 26, 2019, British Columbia unanimously passed Bill 41 becoming the first Canadian province to pass legislation implementing the UN DRIP but the legislation has yet to come into effect and the human rights violations of the Wet’suwet’en and its people by the governments of Canada and British Columbia continue.
The Pipeline proposal violates the collective environmental human rights of the people of the Wet’suwet’en to life, health, clean water, and a clean environment, treaty rights secured to them by the Universal Declaration of Human Right, Art. 3, 25; ICCPR, Art. 6; UN DRIP, Art. 7, 24, 29; American Declaration of the Rights and Duties of Man, Art. 1.
Most importantly, as a fundamental matter of international law, all peoples and nations, large and small, are equal. UN Charter, preamble, par. 2 and art. 1, sec. 2 (1945); UN DRIP, preamble, par. 2 and articles 1 and 2 (2007), also, Henry Wheaton, ELEMENTS OF INTERNATIONAL LAW (6th ed. 1855), Chap. II, Sec. 15. As a peoples equal to all other peoples, under international law the Wet’suwet’en possess full and equal rights to their territory, lands, and natural resources, to their self-determination by which they may freely determine their political status, to their indigenous nationality, government, jurisdiction, and laws, and to their indigenous identities and way of life including their spirituality, language, and culture. They have the right as with all peoples to be free of all forms and manifestations of colonialism and racism. The doctrine of lex loci rei sitae or lex situs is and has been a settled principle of the law of nations and international law that it is the law of the peoples that occupy a territory that governs the territory and particularly the nature and scope of interests in lands and people within. Emer de Vattel, THE LAW O NATIONS (1797), Bk. 2, Chap. VIII, Sec. 103; Henry Wheaton, ELEMENTS OF INTERNATIONAL LAW (6th ed. 1855), Chap. II, Sec. 16; Duke v. Andler, 1932 CarswellBC 101 (Can. 1932); Minera Aquiline Argentina SA v. IMA Exploration, Inc., 2006 CarswellBC 1176 (SCBC 2006); also, Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649, 1653-54, 1658-63 (dissent) (2018). In Delgamuukw and at all other times, the Wet’suwet’en have rejected the unlawful imposition of colonial Canadian authority and law upon them and have rightfully invoked and rested upon Anuc’nu’at’en, their own traditional and inherent laws, as primary and decisive in defining their unceded territory, yintah, as well as their exclusive jurisdiction and governance of their people, lands, and natural resources.
We call for the respect by Canada and British Columbia of the sovereign territory, rights, and laws of the Wet’suwet’en and its peoples and of all First Nations, and for the immediate and permanent halt of the permitting of the construction of any pipelines or other invasions of their yintah without their free, prior, and informed consent. We further stand with the Wet’suwet’en and the traditional Unist’ot’en and with the land protectors at the Wedzin Kwah camp and the Gitdumt’en camp in opposition to the proposed pipelines across their yintah and to the continuing imposition of colonial rule upon them by Canada.
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FOR MORE INFORMATION OR TO SUPPORT THE WET’SUWET’EN:
Legal Fund: https://actionnetwork.org/fundraising/unistoten2020legalfund
Supporter Toolkit: http://unistoten.camp/supportertoolkit2020/
Gidimt’en’s call to action: www.yintahaccess.com
Donate to Gidimt’en camp: https://www.gofundme.com/f/gidimt039en-strong
Actions and demonstrations: https://www.facebook.com/events/221856442184296/
