The Rising Floodwaters Won’t Hide the Shameful Criminalization of Land Defenders

All eyes were on Wet’suwet’en territory in Northwest British Columbia again this November as militarized RCMP officers arrested peaceful Indigenous land defenders and their supporters. This is the third time since 2019 that the RCMP have enforced an injunction to evict and arrest those opposed to Coastal Gaslink’s (CGL) controversial pipeline which, if completed, will transport fracked gas from Alberta to East Asian markets on behalf of TC Energy.

In total, 36 people – including elders and journalists – were arrested between November 18 and 29, 2021. These arrests happened as the tensions increase between Canada’s publicly stated commitments to respect Indigenous peoples and prevent further climate breakdown, and Canada’s fossil-fuel-soaked  realpolitik.   

The Canadian negotiation team to COP26 in Glasgow made promises to end subsidies for ‘unabated’ fossil fuel projects overseas by 2022 and to phase out coal by 2030. Yet they failed to commit to substantial actions that would limit global temperature rise to 1.5 C.The climate talks are widely considered a dismal failure by civil society. Indigenous leaders from around the world called the failed talks a ‘death sentence’ for Indigenous peoples.

Canada’s COP negotiators returned to devastating floods and mudslides that killed at least 4 people in BC, destroyed major highway infrastructure and left agricultural resources in ruins in BC, Newfoundland and Labrador, and Nova Scotia. While this climate disaster unfolded, authorities sent heavily armed police officers and canine units to arrest people opposed to a fossil fuel project that they say threatens critical drinking water and salmon habitat.

The dissonance has left many people upset, confused, unsure what to focus on, and frustrated by Canada’s double-speak.

Failing grade: Canada isn’t meeting its international human rights obligations

The recent arrests on Wet’suwet’en territory violate Canada’s obligations to Indigenous peoples and ignore a decision by the UN Committee for the Elimination of Racial Discrimination (CERD). CERD’s job is to make sure countries that have ratified the Convention on the Elimination of Racial Discrimination fulfill their obligations and provides them with guidance in the form of recommendations and decisions when they need to course correct or remedy violations.

CERD called Canada to task in 2017, 2019, and 2020 over its failures to uphold the rights of Indigenous peoples to meaningful consultation and the principle of free, prior, and informed consent – which flows from the right to self-determination – in relation to the Coastal Gaslink and Transmountain pipelines and the Site C hydro-electric dam in British Columbia.

The Committee has called on Canada to:

• immediately halt the construction and suspend all permits and approvals for the construction of the Coastal Gas Link pipeline in the traditional and unceded lands and territories of the Wet’suwet’en people, until they grant their FPIC, following the full and adequate discharge of the duty to consult
• immediately cease forced eviction of Wet’suwet’en peoples
• guarantee that no force will be used against the Wet’suwet’en peoples and
• withdraw RCMP and associated security and policing services from their traditional lands

In blatant disregard for the rights of the Wet’suwet’en people and for its Convention obligations, Canada has failed to take these actions.

Please see the open letter to Prime Minister Trudeau  that Amnesty International Canada signed alongside 68 organizations, academics and public figures calling on him to fulfill Canada’s obligations under the Convention.

The letter notes that,

Instead of respecting human rights and taking strong action to address climate change, the Canadian government has escalated the use of force against Indigenous land defenders who, as well as defending their Indigenous rights, are defending the health of the planet for us all. Since 2019, when the CERD issued its declaration, the situation regarding Indigenous land defenders in BC has deteriorated.

Canada’s highest courts have recognized that Indigenous legal processes existed prior to Canadian legal declaration or colonial recognition. What this means is that Canadian laws and colonial structures rest on top of Indigenous title and rights – not the other way around, as politicians and pipeline companies would have it. The Supreme Court of Canada, in 1997, recognized Wet’suwet’en rights and title to their lands. And in 2021, the BC and federal governments signed a Memorandum of Understanding that “recognize(s) that Wet’suwet’en rights and title are held by Wet’suwet’en Houses under their system of governance” and that “Canada and BC recognize Wet’suwet’en aboriginal rights and title throughout the Yintah”.

Yet Canada and BC have chosen to criminalize – with violence – those who peacefully defend their rights and do not give their consent to the despoiling of their lands. Canada’s actions are inconsistent with its international obligations, and with federal and provincial legislation to implement the UN Declaration on the Rights of Indigenous Peoples.

Canada’s International Human Rights Obligations are Clear

The UN Declaration on the Rights of Indigenous Peoples affirms that Indigenous peoples have the right to make their own decisions about their lives and futures according to their own laws and traditions. This is fundamental. Anything less is a continuation of the structures and practices of colonial domination that the Declaration repudiates.

One of the crucial purposes of human rights instruments like the Declaration is to hold governments to a higher standard when there is a conflict between what is politically convenient and what is right. When governments and companies consult or make agreements with communities, they should be prepared to hear ‘yes’, ‘no’, ‘not sure, not yet’. The real test of reconciliation is how they respond when Indigenous peoples say ‘no’, or ‘not yet’.

Projects can be redesigned, finding new routes in the case of pipelines or alternative sources of power in the case of hydro-electric dams. Projects can be delayed until an agreement can be reached. And they can also be abandoned in favour of other projects where consent can be freely obtained. International guidance to companies provides steps for companies to take when consent is absent or withdrawn during the lifetime of a project. Without a doubt, there can be serious economic consequences for not proceeding with or withdrawing from a project. But at the same time, there are financial costs and social and environmental harms to others that would be avoided by cancelling a project.

Finding the right balance between benefits and harms is a crucial matter of debate and public policy. In a time of climate crisis, the requirement for balance must be met with vision, boldness, and justice. If humanity is to survive, a just transition that puts human rights at the centre is urgently required. Indigenous knowledges are crucial to this transition.

In Northwest British Columbia, Hereditary Chiefs of the 5 clans of the Wet’suwet’en people affirm:

“All Wet’suwet’en Clans have rejected the Coastal Gas Link fracked gas pipeline because this is our home. Our medicines, our berries, our food, the animals, our water, our culture are all here since time immemorial. We are obligated to protect our ways of life for our babies unborn”

No matter what the government of the day chooses to do, it cannot casually ignore inalienable rights protected by international law and the Constitution. The Truth and Reconciliation Commission concluded that centuries of colonial laws and policies were designed with genocidal intent. By continuing to ignore the inherent rights of Indigenous peoples in Canada to make their own decisions according to their own laws and traditions, by denying consultation and consent-seeking processes for ALL Wet’suwet’en people, and by criminalizing those who say ‘no’ or ‘not yet’ or ‘not exactly like this’, Canada is reinforcing the unjust, colonial relationship between Canada and Indigenous peoples.

Take Action!

Sample Twitter Messages:

I join @AmnestyNow in solidarity with #Wet’suwet’enStrong #Gidimten. I call on @JustinTrudeau @jjhorgan to uphold Canada’s int’l #humanrights obligations to #IndigenousPeoples and on @mikefarnworth and @marcomendocino to remove #RCMP security forces from the #yintah

Embarrassing that #Canada has failed AGAIN to respect UN #CERD calls to stop evicting #Wetsuweten people from their #yintah. @JustinTrudeau #Canada must seek consent from ALL affected by the @CoastalGasLink pipeline, respect the outcome + Wet’suweten law