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British Columbia Hereditary leader files court appeal in LNG energy development case

A sign is displayed outside of a protest camp on the Lelu Island near Prince Rupert, B.C.

Ben Nelms/Bloomberg

A B.C. hereditary tribal leader is asking the Federal Court of Appeal to allow his legal battle to protect an island and salmon habitat against being targeted for energy development.

Donnie Wesley recently filed his notice of appeal after Justice Robert Barnes of Federal Court said in a July 26 decision that Mr. Wesley's "application is dismissed on the basis that he lacks the necessary standing to bring it in a representative capacity" on behalf of the Gitwilgyoots tribe – one of nine allied tribes of the Lax Kw'alaams First Nation.

Mr. Wesley and his supporters began a protest camp on Lelu Island in August, 2015, to raise environmental concerns over Pacific NorthWest LNG's contentious plans to construct its project near Prince Rupert on British Columbia's North Coast.

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Pacific NorthWest LNG, led by Malaysia's state-owned Petronas, announced the cancellation on July 25 of its proposal to build an $11.4-billion island terminal to export liquefied natural gas to Asia. Mr. Wesley, however, is concerned about the possibility of future proposals to use Lelu Island as the site of a liquefaction plant.

The current Lax Kw'alaams Mayor, John Helin, backed Pacific NorthWest LNG's plans but his predecessor Garry Reece opposed the venture.

Mr. Wesley is seeking a judicial review into whether the federal government acted properly in September, 2016, when it approved Pacific NorthWest LNG's plans for Lelu Island, which the Gitwilgyoots tribe claims as part of its traditional territory in the Skeena River estuary. The key concern is the ecological threat to Flora Bank, a sandbar that nurtures juvenile salmon in the location next to Lelu Island.

SkeenaWild Conservation Trust and hereditary chiefs from the Gitanyow First Nation are each seeking a court order that would overturn the federal cabinet's approval of Pacific NorthWest LNG. The applicants have discontinued their case against the Petronas-led group but are continuing their Federal Court proceedings against Ottawa in an effort to prevent other LNG players from potentially developing Lelu Island.

Mr. Wesley's lawyer, Richard Overstall, said his client should also be granted standing in Federal Court.

Justice Barnes "gave insufficient weight to relevant factors such that an obvious injustice would result," Mr. Overstall said in a notice of appeal filed in the Federal Court of Appeal last month.

Mr. Wesley also goes by the title Yahaan. He has been head chief, or sm'oogyit, of the Gitwilgyoots since a feast held in his honour in 2008, Mr. Overstall said.

In his July decision, Justice Barnes said Mr. Wesley failed to prove that he is head chief.

Carl Sampson Sr. has filed his own documents in Federal Court to assert that he is the head chief of the Gitwilgyoots and not Mr. Wesley. Justice Barnes said he isn't in any position to rule on the leadership dispute between Mr. Wesley and Mr. Sampson, saying neither are recognized in court in a representative capacity and suggesting the rift could be resolved internally by tribe members.

"In this case not only has Yahaan failed to produce evidence of community support, but what evidence there is suggests that he is opposed by a substantial number of Gitwilgyoots members," the judge wrote. "His failure to ascertain the level of support he carries among members of the Gitwilgyoots also disqualifies him from purporting to act on their behalf."

Mr. Helin, the Lax Kw'alaams Band Mayor, and Metlakatla chief councillor Harold Leighton are among the elected Indigenous officials who expressed support for Pacific NorthWest LNG and disputed Mr. Wesley's authority.

"In the absence of any meaningful attempt by Yahaan to consult with the members of the Gitwilgyoots, it is not possible to know the full extent of his conflict of interest," Justice Barnes said. "Acting in a representative capacity is not a platform for unilateral decision-making or indifference to the wishes of the collective."

Mr. Overstall's notice of appeal, however, warns that the internal challenge to Mr. Wesley's authority shouldn't be enough to disqualify him. "A precedent would be set that the alleged existence of such a challenge would be considered determinative by a court even if there was no evidence to support it or if a court declined jurisdiction to resolve it," he wrote.

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Mr. Overstall disagreed with the Federal Court judge's view that a substantial number of Gitwilgyoots members oppose his client. "Even if consultation on procedural steps was required under Tsimshian Indigenous law, which it is not, Yahaan was not able to consult with Gitwilgyoots members within the Federal Court timelines," Mr. Overstall said.

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