On July 26th 2017, the Federal application for judicial review brought by Yahaan, Donald Wesley in connection with governmental decisions made in the PETRONAS/ Pacific Northwest Partnership Lelu island development was dismissed. By the time it was made, however, this, once portentous Federal court ruling, was moot as PETRONAS had pulled the plug on its 36 billion dollar project just the day before. The decision by the Justice Robert Barnes, which was reported in the Northern View, was based on his finding that the applicant lacked standing to represent the Gitwilgyoots Tribe. In his judgment, he said, “Yahaan failed to produce evidence of community support” and that “what evidence there is suggests that he is opposed by a substantial number of Gitwilgyoots members,” Wesley had argued that the federal government did not properly consult with him as a one of the nine tribes of the Coast Tsimshian Nation, thereby invalidating the environmental assessment, in which such consultation is mandated. He had asserted that this flawed assessment led to a consequently flawed and invalid Federal approval of the Petronas LNG project in 2016. The judge found that Wesley was not “an appropriate person to act in a representative capacity” because, amongst other reasons, he had failed to prove both his leadership claim and his authority to launch the court proceeding on behalf of the Gitwilgyoots. As such the decision seems not to touch on the larger questions of the standing of a First Nation tribe vis-à-vis the Band Council in the eyes of the courts as well as of the government’s obligation to pay attention to indigenous law, as opposed to the Indian Act, in matters pertaining to the tribal and chieftan authority.
There are presently 3 applications for judicial review brought by Gitwilgyoots Tribe, Gitanyow Tribe and by and SkeenaWild Conservation Trust in connection with the PETRONAS/ Northern Gateway investment proposal on Lelu Island. In considering the reasonableness and good faith of the government’s decision to proceed with this development, it seems clear from the Federal Appeal’s court decision on the matter of the Northern Gateway Pipeline Project that the Crown is obliged to consult with First Nations on whose territories economic developments take place before proceeding with any decision making. There are two specific issues that need to be resolved: –
1. Who should be consulted – which boils down to whose authority the Court recognizes over the lands occupied by the Gitwilgyoots and the Gitanyow tribes. In this matter the Lax Kw’alaams Band Council has launched a legal challenge to the tribal authority of hereditary chief Simogyet Yahaan.
2. What does meaningful consultation amount to – As David P. Ball notes in a Metro Vancouver article, when asked what ‘meaningful consultation’ would look like Chief Malii of the Gitanyow replied: “It means you have to really listen to the aboriginal group, take into account what they’re saying, and you have a discussion … It’s not just having a meeting or writing a letter; it’s an actual exchange.”
The first point goes to the heart of First Nations autonomy as Band Council’s are appointed under the auspices of Canadian legislation, while hereditary leadership in inherent to the native order and relationship with this land. The second point, which is the subject of this post, goes to the heart of the matter of any possible reconciliation with the First peoples on our common abode. It seems to be a matter of good faith and common sense, that recognition of the First Nations should involve some semblance of respect for their jurisdiction. Faith and sense which the details of the Tribes’ applications for judicial review indicate the Crown may not have displayed!