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Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs, arrives for a news conference to address the response from the chair of the RCMP's Civilian Review and Complaints Commission regarding the RCMP exclusion zone in the Wet'suwet'en territory, in Vancouver, on Thursday, February 20, 2020.

DARRYL DYCK/The Canadian Press

Grand Chief Stewart Phillip has led the Union of British Columbia Indian Chiefs for more than two decades and even he cannot determine whether the Wet’suwet’en people support or oppose the Coastal GasLink pipeline.

But he believes there is a simple solution that could allow governments and industry to understand where they stand with major resource development projects such as this one: a referendum.

“There needs to be a measure undertaken to accurately assess the will of the people," he said in an interview.

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Long before Indigenous opposition to the natural gas pipeline sparked disruptions for commuters, industry and government across the country, Coastal GasLink declared it had Indigenous support for the project. By 2018, the company had negotiated community and project agreements with all of the elected Indigenous band councils along the pipeline route across northern B.C.

Now that divisions have emerged among the Wet’suwet’en people about whether they do, in fact, support the pipeline, it is clear that those agreements are of limited value as a yardstick for measuring Indigenous consent.

“Impact benefit agreements with a handful of band councils along the proposed pipeline route do not meet the standard of consent,” Mr. Phillip said. “The measure of consent lies with the rank-and-file members of an entire Indigenous nation.”

The solution then, he said, is to set up a mechanism that would allow all members of an Indigenous community to vote on a project.

He would like to see a “legitimate, legal process” to poll the membership of Indigenous communities. “It has to be enshrined in legislation so that it’s mandatory.”

The Supreme Court of Canada has firmly established that the Crown has a duty to consult Indigenous people when a development – such as a pipeline – has an impact on their community’s rights. That requires an informed and meaningful opportunity for dialogue. However, much of that dialogue has been left to companies and regulatory permitting processes. Mr. Phillip said that’s where Canada and British Columbia have failed, and this dispute shows the system is not working.

The governments of Canada and B.C. have maintained that it is up to the Wet’suwet’en people to determine who speaks for them; they will not be keen to try to impose a solution.

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Mr. Phillip regards band councils as constructs of the Indian Act, and his proposal will be contentious with those elected leaders who bristle at the notion that their decisions are not legitimate.

Ellis Ross, the Liberal MLA for Skeena and the former chief councillor of the Haisla Nation, has championed liquefied natural gas as a means to lift his community out of poverty. He says the BC NDP government and other interlopers have destabilized Indigenous governments by seeking to negotiate with the hereditary chiefs of the Wet’suwet’en without according the elected representatives the same courtesy.

“Right now, there are activist organizations that want to keep Indigenous people below the poverty line through misinformation and manipulation,” he told the legislature during Question Period in February. “Nobody has gone to meet with these elected band councils to hear their story. Illegal protests are aimed at shutting down opportunities that my band has fought for since 2004.”

Right now, there is nothing preventing an Indigenous community from holding referendums; in fact the Nisga’a Nation has declared its support for developing the LNG sector on B.C.'s northeast coast after “a thorough process of consultation” with its people.

On Sunday, Wet’suwet’en hereditary chiefs and ministers for B.C. and Canada announced they had reached a proposed agreement to move forward. But the price of this dispute has been costly for all sides, and a better mechanism for the next dispute would be a worthwhile legacy.

Mr. Phillip said there is a vehicle that could easily be used to create a referendum framework. The B.C. government passed legislation last fall that commits the province to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which states that resource developments require the “free, prior and informed consent” of affected Indigenous peoples. Prime Minister Justin Trudeau has a draft of his promised bill on UNDRIP, although its introduction has been postponed amid the conflict over the Coastal GasLink pipeline.

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As one of B.C.'s most senior Indigenous leaders, Mr. Phillip has long demanded that the Crown recognize Indigenous rights to self-determination within their territories. It is startling that he is proposing to have the governments of B.C. and Canada impose a referendum system. Perhaps he is one of the few Indigenous leaders who could sell this idea.

But it still leaves the big question: If the Wet’suwet’en people had the chance to vote on Coastal GasLink and said “no,” would their answer be accepted by government and industry?

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