In a frame from protesters’ video, an armed Donald Wesley Jr. patrols Lelu Island near Prince Rupert. File photo

Tribe or band? Judge will decide who represents Lelu

First Nations and federal government in court battle over Pacific Northwest LNG project

In a matter of weeks, a federal judge is expected to decide on whether the Gitwilgyoots tribe or the Lax Kw’alaams Band is the proper representative for Lelu Island and Flora Bank.

The land in question is the site of a $36-billion Pacific NorthWest LNG project by Petronas.

The federal government approved the project in September 2016. One month later, Donald Wesley, or Yahaan, applied for a judicial review of the federal government’s decision on behalf of the Gitwilgyoots tribe.

“That application was made on the basis that the federal government had failed to accomodate the Gitwilgyoots tribe, or hereditary or indigenous owners of Lelu Island and surrounding area,” said Richard Overstall, the lawyer representing Wesley and the Gitwilgyoots.

In March, the Lax Kw’alaams Band challenged the tribe on the basis that the band was the only entity the federal government needed to consult with and that Wesley was not a proper representative of the Gitwilgyoots. Metlakatla Band followed suit, stating that some of its own band members are part of the Gitwilgyoots tribe.

All the evidence was put forward in a hearing in early June, where five groups of lawyers opposing the Gitwilgyoots — from Metlakatla, Petronas, the federal government, Lax Kw’alaams, and Carl Sampson — stated their case.

Now it is up to Justice Robert Barnes to make a decision. Overstall anticipates the decision will be made in weeks rather than months. If the band is successful, then the federal court is stating that it is okay for the band to represent all the tribes.

However, the Gitwilgyoots tribe has questioned whether the Lax Kw’alaams Band can be considered a proper representative in this situation. The tribe argues that from 2013 until the spring of 2016, the band had questioned the effect the liquefied natural gas terminal would have on salmon habitat on Flora Bank off Lelu Island, and had even rejected a $1-billion LNG benefits agreement in May 2015. In March 2016, the Lax Kw’alaams Band reversed its decision and began supporting the project.

“After that happened, various reports that had previously been on its website were withdrawn, and that was our evidence, and it [the band] commissioned a further report that never saw the light of day and it also tried to suppress one of the scientists who had been working previously with it and essentially asked him to cease and desist discussing the project with band members,” Overstall said.

In August 2016, band members were asked to vote to continue talks with Petronas and the province on the Lelu Island-based LNG project, and 65.5 per cent said yes. In February 2017, Mayor John Helin signed a $98-million LNG benefits agreement for the community.

But during the trial, scientific reports were revealed that hadn’t been disclosed to the community prior to the vote.

“They weren’t disclosed because they questioned the validity of the company’s technical reports after the band had already decided that it would go along with the project,” Overstall said.

Wesley and the Gitwilgyoots lawyer said it’s hard to discern which way the judge will go. He said Justice Barnes had a series of questions that demonstrated he was trying to familiarize himself with not only indigenous concepts but also indigenous law in terms of how a head chief is appointed, and what kind of authorization he or she has.

If Wesley and the Gitwilgyoots tribe are successful, they say courts and governments will have to pay attention to indigenous law, in this case, Tsimshian law, as to how the tribes, houses and chiefs govern themselves, as opposed to the Indian Act. The judicial review of Pacific NorthWest LNG will then be allowed to proceed.

If the Lax Kw’alaams and Metlakatla Bands are successful, the court will recognizes bands as the umbrella representative for tribes in the area, and the Gitwilgyoots will not be able to go through with a judicial review.

Both the Lax Kw’alaams and Metlakatla Bands were contacted for comment and neither responded.