This article was written for YES! Magazine
The Unist’ot’en occupy a unique spot. Hidden in the forests of northern British Columbia, this clan of the Wet’suwet’en Nation straddles one of the few potable rivers remaining on the continent. In the summer, the water is electric with salmon and steelhead trout beating their unbelievable course from the Pacific to inland spawning waters. The land is ripe with berries, moose, deer, and bear. And trees. A seemingly unending forest—dense, diverse, and once ancient before the grinding of timber saws—carpets the land.
The Unist’ot’en also have something else: potential autonomy. They never fought a foreign nation for their land, never signed it away in a treaty or sold it off to the highest bidder. They occupy one of the few places in North America that hasn’t been officially turned over to a colonial power. Imagine living on your own sovereign piece of the American continent. Fly your own flag.
At one time, this land was seemingly overlooked—a relatively small piece of an unfathomably vast frontier. But even as the focus for riches has shifted from gold to fur to coal to oil, power has always belonged to those who control the routes of trade. The Unist’ot’en, sitting between the oil-rich deposits of Alberta and the coastal portal to global markets, on land that was never surrendered, have a rare opportunity to push back against the march of oil extraction and resource consumption. Their resistance takes the form of a camp set squarely in the path of several proposed pipelines, a small Native group holding its ground against colonial greed. But success hangs on the question: Who, exactly, owns this land?
“Under their own systems of law I have no doubt that it’s their land. In our system, in order to make a claim, you have to prove it,” says Kent McNeil, a professor of property and Aboriginal law at York University in Toronto who has acted as an expert witness on behalf of Aboriginal groups. To date, the province of British Columbia and the Unist’ot’en people have been at a stalemate over what can be proven.
The Unist’ot’en assert that the land has belonged to them since time immemorial. The Canadian government maintains its dominion over everything north of the 49th parallel, though historically it has recognized through the Royal Proclamation of 1763 that land occupied by indigenous people would need to be covered by a treaty before it could be ceded into a colony. While most of Canada gradually worked out a series of treaties, British Columbia failed to finalize negotiations with Native groups. Without a treaty or receipt of sale, neither side has an airtight legal claim. As it stands, the onus is on the clan to prove its exclusive occupation of the land at the time of first contact. That’s Canadian law.
The Unist’ot’en might consider themselves lucky to have had their claim go unnoticed long enough for the powers that be to have shifted their methods of determination from the battlefield to the courthouse—not that either has ever offered a level table. Proving Aboriginal title to land in Canada has not been a simple task.
Until as recently as the early 1970s, there was no legal recognition of Native land claims; they were simply handled in court through common law. That changed when Frank Calder, an elder of the Nisga’a First Nation of northern British Columbia, brought a suit against the province. The resulting ruling found that Native title was a legal right that had existed at the time of first contact with Europeans. Less than a decade later, the Canadian government firmed up its protections of Aboriginal land claims in the Constitution Act of 1982.
“In one sense, Aboriginal title is not a special right at all. It is simply a matter of recognizing property rights that, until now, have been wrongfully ignored,” states the B.C. Treaty Commission, an independent treaty facilitator.
“What that means,” McNeil says, “is for the government to be able to justify infringement of these property rights, it’s a pretty high bar.” But it’s no secret that governments can jump.
“It’s a system that’s been working against us from day one, and that’s why we’re forced to do what we’re doing.”
The story of North American Native-colonial relations is one of broken promises. In the United States, the history of the Nez Perce offers a succinct illustration. For millennia, the Nez Perce had occupied a territory encompassing portions of what are today Oregon, Washington, Idaho, and Montana. As white settlers pushed west, they took land for farming and livestock grazing. The U.S. government worked out an agreement with the Nez Perce in 1855 that established a 7.7 million-acre reservation for the tribe. But industry—back then, gold—brought more and more profit-seeking settlers to the area. Only eight years after signing the first treaty, another U.S. government “agreement” pushed the Nez Perce onto a reservation one-tenth the original size.
Many First Nations people, and certainly those within the Unist’ot’en resistance camp, see the same cycle playing out today in British Columbia. The Constitution Act may have acknowledged indigenous rights, but it stopped short of actually defining them. Definition was supposed to be handled at a constitutional conference chaired by then Prime Minister Pierre Trudeau within a year of the Constitution’s enactment in 1982. Five years, three conferences, and a new prime minister later, little progress had been made toward any clarification.
In 1984, threatened by industry incursion, the Wet’suwet’en Nation, of which the Unist’ot’en is a clan, joined the neighboring Gitxsan First Nation in a suit against the province to lock down what constitutional recognition of their rights actually meant.
They asserted ownership of about 22,400 square miles of their historic territory—nearly the size of West Virginia—and compensation for land already lost. The Province countered that the First Nations had no interest in the land. The courts seemed to agree as Chief Justice McEachern of the Supreme Court of British Columbia issued a sweeping and highly controversial ruling dismissing the Wet’suwet’en claims. He decided that Native rights to the land existed at the pleasure of the Crown, which pleased to extinguish them back in 1871 when British Columbia became part of Canada.
The ruling was appealed, and a fruitless effort at negotiation was undertaken. The case, Delgamuukw v. British Columbia, made its way to the Supreme Court of Canada, which in a landmark yet vague victory for the Wet’suwet’en and Gitxsan, made a ruling of no ruling. “They basically avoided the issue,” McNeil says.
This is why the Unist’ot’en have built a blockade to keep government and oil industry representatives out of their territory, and this is why the government and oil industry representatives keep banging on the door: The lack of a binding court decision or treaty keeps the situation unresolved.
“It’s a system that’s been working against us from day one, and that’s why we’re forced to do what we’re doing,” says the clan’s spokeswoman, Freda Huson. In August, The Guardian reported that the Crown had invested $30 million over two years on tar sands propaganda, giving weight to concerns that government is an arm of industry.
By not making a ruling on the First Nations’ land claim, the Delgamuukw decision did little to help that perception. However it did set two important precedents that could benefit future Aboriginal cases. First, it included an interpretation of Aboriginal land title that seemingly allowed for outright ownership. Previously, Native use of land was limited to historic purposes: activities like fishing and hunting that existed before white settlers arrived. Aboriginal groups were not able to develop their land to meet the contemporary world. “As a result, they would probably have to assimilate into Canadian culture in order to survive,” McNeil says, “which would no doubt lead to the destruction of their distinctive cultures.”
Secondly, Delgamuukw set an important precedent, allowing oral history to be taken as courtroom evidence. In European law, family stories make for a soft case. “It would be very, very difficult for an oral society to prove its case regarding events more than 150 years in the past if such evidence were not admissible,” says Hamar Foster, a professor of law at the University of Victoria who has written extensively on Aboriginal title. “The point is that both oral history and documentary evidence should be admissible, and both should be subject to scrutiny—not just the oral history.” This more equal weighing of oral evidence could level the legal playing field should the Unist’ot’en decide to take their claim back to court.
The Wet’suwet’en claim is still undecided. The years-long treaty process has been abandoned. Chevron, TransCanada, and Enbridge Inc. pace eagerly on the south bank of the Morice River. From time to time they fly helicopters into some remote part of the territory to conduct environmental assessments. Each time, the Unist’ot’en follow the chop-chop-chop to where the copter lands and tell the intruders to find some other place to take their measurements. “You don’t have our consent to be here,” Huson tells them.
After the Delgamuukw decision, other cases sought further explanation of the rights inherent in Aboriginal title. Among them was a 2004 Supreme Court case involving the Haida Nation of British Columbia, which found an obligation for outsiders to consult with bands in good faith before engaging in any activity. This holds true for the Unist’ot’en, who like the Haida have an unproven claim to territory under threat by resource industries. But the distant reaches of a vast frontier are a tough place to monitor intentions.
The oil and gas commission awards permits to companies regardless of the clan’s concerns, Huson explains, standing in the camp she has led supporters in building since 2010. “Is this just a formality?” she asks. “You’re asking us, and we tell you no, and you issue the permit anyway.” Despite the mandate for consultation, First Nations do not have authority to turn down a project on their territories.
When seeking a consultation, Huson says industry and government officials often turn to government-established councils or leaders of other clans within the nation who, she asserts, have no right to make decisions for the Unist’ot’en. The Crown, unable or unwilling to recognize the distinctions among individual Nations, bands, and clans, turns instead to elected chiefs and councils established under the extremely controversial Indian Act. This legislation grouped communities—often rivals—into a few governmentally recognized bands for ease of management. An elected official, who is neither required to be Native nor living in Canada, makes decisions for the Indian Act bands.
“Territories have never been owned or managed by an Indian Act form of government,” says Toghestiy, a Wet’suwet’en hereditary chief, “but the government decided to try and empower them, to force infighting between the electoral system and the hereditary system.”
Documents obtained by The Guardian in April show that Alberta’s prime minister attempted to fund a task force that would commit First Nations members to promoting support for oil extraction within their own communities in exchange for royalties and investment opportunities.
The first declaration of Aboriginal title in Canadian history was awarded last year to the Tsilhqot’in First Nation, just south of the Unist’ot’en. They had been embroiled in a legal battle with British Columbia over a commercial logging license granted without the band’s approval and claimed Aboriginal title to a portion of their historic territory. The ruling has provided profound hope for First Nations with unceded lands—there are hundreds in British Columbia.
Armed with the success of the Tsilhqot’in decision and a growing pile of progressive legal precedents, the Unist’ot’en have a unique opportunity to make a case for mediated control over a portion of what has always been theirs. Court battles, however, are expensive and offer an all-or-nothing outcome. Another option, the treaty process, is slow, often frustrating, and requires concessions that ultimately result in the relinquishment to Canada of underlying ownership. So the Unist’ot’en have chosen to do what they’ve always done: simply live on the land.
“I can confidently say without any hesitation that these lands belong to us,” Toghestiy says. He recounts his grandmother telling him: “‘When you grow up, you have to look after your territory.’ As I got older, I learned all about the ins and outs of bureaucracy and government, and how you apply for permits and the entire licensing process. And her words came back to me. ‘When you grow up you have to look after your territory.’ She didn’t say I have to go to the government and ask permission to see if I can go onto my territory. She said, ‘When you grow up, you have to look after your territory.’ And it dawned on me that that’s exactly what she meant.”