The former chief commissioner of the Truth and Reconciliation Commission has described Coastal Gaslink Pipeline Ltd.'s community-benefits agreements with elected Indigenous chiefs and councils as a "promise payment for silence".
"The argument that Chiefs and Band Councils along the route may have signed Benefit Agreements can hardly be said to be proper consent, for I have seen some of them," Sen. Murray Sinclair wrote in a blog post.
He added that the "failure to recognize the traditional law of the Wet'suwet'en" in these deals "is a fatal flaw" to anyone who argues otherwise.
Twenty elected chiefs and councils along the 670-kilometre pipeline route have signed agreements—a fact often cited by pipeline proponents.
The former Manitoba judge also questioned whether Canada has complied with its own legal requirements in the dispute over the Coastal GasLink pipeline.
"Canada’s obligation to resolve this jurisdictional dispute is clear from the case law, but it has failed to do so, mainly because it has declined to negotiate," Sinclair declared. "Injunctions are supposed to be issued only to those 'with clean hands' and Canada would likely fail on that point."
According to Sinclair, the courts have recognized that traditional chiefs "have an overall say over unceded territory".
Wet'suwet'en hereditary chiefs oppose the Coastal GasLink project, which has been given the green light by the B.C. government.
"Let’s say the United States wanted to run a pipeline from Alaska to Texas and got the BC Government to sign off, through promises of jobs and financial payments," Sinclair wrote by way of analogy. "Could Canada not rightfully say: 'You need our consent too'? Such is the nature of the role of traditional chiefs."
He noted that in the past, he's warned that ramped-up Indigenous resistance has the potential to paralyze the national economy. And he brought up a Simon & Garfunkel hit to illustrate where things could go from here.
"Indigenous people must feel the way that Paul Simon expressed in his song 'The Boxer':
“I am just a poor boy though my story’s seldom told
"I have squandered my resistance for a pocketful of mumbles,
"Such are promises,..”
"Positive acts of resolution will be needed," Sinclair stated. "Police and military enforcement will only serve to inflame matters.
"Frankly, given Canada’s intransigence, and the rising sense of injustice felt by Indigenous leadership throughout the country, I do not like where this is heading."