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Judge perplexed that illegal Gitxsan blockade is still in place

Charles Heit, a Gitxsan first nation member opposed to the $5.5-billion Enbridge oil pipeline from Alberta to Kitimat, B.C., warms himself beside a fire at a camp outside the Gitxsan treaty office in Hazelton, B.C., on Jan. 12, 2012. The protesters barricaded the treaty office after claiming employees backed the pipeline without receiving authorization from the Gitxsan people.

Darryl Dyck/The Canadian Press/Darryl Dyck/The Canadian Press

A dispute that was triggered when a hereditary chief announced the Gitxsan First Nation was supporting the Northern Gateway pipeline has led to an ongoing conflict that has divided the band and frustrated the Supreme Court of British Columbia.

In December, shortly after Elmer Derrick signed a deal endorsing the controversial Enbridge pipeline, a group of hereditary chiefs swept down on the Hazelton offices of the Gitxsan Treaty Society, and set up a blockade in protest.

The GTS, of which Mr. Derrick is a negotiator, then quickly distanced itself from his statement and declared he had acted only as an individual hereditary chief, not on behalf of the society.

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But five months later, the blockade – ruled illegal by the courts early in December – remains in place, despite complaints by Supreme Court Justice Mark McEwan that the police have not enforced an injunction order against the blockade.

When Judge McEwan was told during a hearing in April that an injunction issued by another judge in December still had not been enforced, he seemed perplexed. "If I order the RCMP to do it, I order them to do it … do you want to explain this to me?"

Kyle Friesen, a Department of Justice lawyer appearing for the RCMP, replied that injunction enforcement orders typically allow the police discretion on how and when to take action.

"But it's not an enforcement order if it … leaves that discretion," complained Judge McEwan. "What's the point of that? … I mean, it undermines the whole point of having an injunction, doesn't it? I mean, if, if the court says get out and tells the police to get them out of there, that's what it means."

Mr. Friesen said police require discretion because "the risks of proceeding at any one time, the police officer resources required, the public safety concerns and the push back from the community [are all]factors which may not be directly in front of the presiding judge."

That exchange took place in court on April 3. On Tuesday, the Gitxsan Hereditary Chiefs (a separate group that supports the GTS) issued a statement calling on B.C. Solicitor-General Shirley Bond to "direct the Force to do what they are sworn to do and what we as B.C. taxpayers are paying them to do: enforce the law."

Ms. Bond couldn't be reached for comment, Wednesday, but a spokesperson for the ministry said the government usually lets the RCMP take the lead on such matters.

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RCMP Constable Lesley Smith, speaking for the North District, said police have been engaged with the blockade since it began, but enforcement action is not going to come anytime soon.

"Members of the New Hazelton detachment continue to visit the site and we're ensuring that the protest occurs in a peaceful manner," she said. "The RCMP has worked to facilitate dialogue between all parties and we've offered assistance to identify independent mediators. … So we're in the early stages of enforcement with the hopes that mediation will resolve the dispute and enforcement measures will not be required."

Constable Smith also said there is another court hearing coming up next week and the RCMP want to see what happens there before taking any action.

Norman Stephens, a member of the United Gitxsan Chiefs, the group that started the blockade, said while the protest was triggered by Mr. Derrick's public support for the Gateway pipeline, that was just a flash point.

He said the GTS, which has been negotiating treaty issues with the federal and provincial governments, has lost the confidence of the Gitxsan community. The majority of the population, he said, now wants the society disbanded.

"They claim they represent us," he said of the GTS. "We are saying no way, you are fired, you are history."

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Mr. Stephens, who is a hereditary chief, said people have questions about how money was spent by the GTS, how deals were done without community participation, and about the legal structure of the society.

He said the United Gitxsan Chiefs intend to keep the blockade in place until files in the office are copied, so that a forensic audit of the books can take place.

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