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Indigenous Sovereignty Impacting Canada’s Evolving Energy Sector

As published in the Victoria Standard: February 13, 2019

Unlike most Canadian Indigenous groups, only a minority of British Columbia’s First Nations signed treaties with British colonial authorities or the Canadian government. This unique situation complicates matters for all parties with an interest in hydrocarbon extraction. That list includes Indigenous groups for and against pipelines, environmentalists, resource companies and governments.

A recent confrontation in Northern British Columbia involved a clash between Wet’ suwet’ en protestors and dozens of RCMP officers who forcibly removed a roadblock and arrested 14 Indigenous people. The event occurred after Wet’ suwet’ en people erected a barricade to block construction crews from entering what this First Nation considers its unceded (sovereign) territory rather than “Crown Land.”

A statement from Wet’ suwet’ en chiefs characterized the RCMP’s behaviour as aggressive and emphasized the United Nations Declaration on the Rights of Indigenous Peoples, which forbids the forcible removal of Indigenous peoples from their unceded territories. Wet’ suwet’ en resistance mirrors the efforts of indigenous peoples around the world who fear loss of autonomy and environmental pollution from hydrocarbon extraction, mining and deforestation.

TransCanada claims that the Wet’suwet’en are the lone holdout among local First Nations who have signed agreements with the energy company to build the Coastal Gaslink pipeline from Dawson Creek to LNG Canada’s liquefied natural gas plant at Kitimat, B.C. These pro-pipeline Indigenous groups have common cause with the 200 plus First Nations communities in B.C. and Alberta who see financial benefits from oil and gas extraction as key to their economic emancipation and community stability.

The matter of Indigenous sovereignty in the Wet’suwet’en situation is problematic for Trudeau’s Liberals who support resource projects like the Coastal Gaslink pipeline while simultaneously promoting a Recognition and Implementation of Rights Framework for First Nations, Inuit and Metis peoples. The proposed Rights Framework will supposedly end the uncertainty over Indigenous rights when hydrocarbon resources and pipelines are at stake. As well, the Framework purports to hasten First Nations’ self-government capacity outside the complexity of the Indian Act.

The government’s current power is limited by the historical use of treaties by Britain and later Canada to acquire authority over sovereign Indigenous territory. The Liberal government likely recognizes the political benefit of replacing solid treaties based on communal values with rights-based arrangements that tend to emphasize individual autonomy rather than collective welfare. Among the many tactics employed by colonial powers like Britain to weaken Indigenous resistance was the cynical manipulation of First Nations leaders unfamiliar with European-style individualism.

Therefore, it is worth noting how recent remarks by Federal Fisheries Minister Jonathan Wilkinson resurrect the Canadian government’s paternalistic attitude towards Indigenous peoples. On the topic of Indigenous concerns over the stalled Trans Mountain pipeline, Wilkinson stated in September, 2018 that, “…the only player that needs to be fully satisfied is the court.” While this remark may be legally true, it is based on the questionable assumption that the Federal Court of Appeal is a reliably neutral venue.

People like Paul Chartrand, a former member of the Royal Commission on Aboriginal Peoples, oppose the notion that only the Government of Canada has the power to recognize the territorial and resource rights of Indigenous peoples. He and other critics question the necessity of First Nations being obligated to conclude agreements with the federal, provincial and territorial governments before exercising their own sovereign autonomy.

Indigenous resistance to the current substance of the Rights Framework is partly based on the Peace and Friendship Treaties that were previously negotiated in Maritime Canada. Under these agreements, the Crown does not have ultimate power to grant or recognize the rights of Indigenous Peoples. Critics like Chartrand insist that the older tradition of sovereign Indigenous Nations sharing their sovereignty with non-Indigenous Canadians is superior to the modern notion of rights that includes exclusionary features like private property.

It remains to be seen how the sovereignty versus rights debate will impact the tensions between Indigenous groups who either support or oppose hydrocarbon and other projects. It is certain however, that territorial activism among British Columbia’s First Nations presents a bold challenge to a Liberal government struggling to accommodate competing interests while positioning itself for political longevity.