A B.C. First Nation has sued multiple levels of government and a port authority in a lawsuit that seeks damages and recognition of land title over Canada’s third-largest port.
The Gitxaala Nation filed a notice of civil claim in a B.C. Supreme Court Monday alleging the Canadian and B.C. governments as well as the Prince Rupert Port Authority failed to properly assess its historic presence at the mouth of the Skeena River — where the port is located.
The First Nation, whose name translates to "People of the Open Sea,” cites archeological evidence and oral histories showing its continuous occupation of territories near the port. The claim also challenges the results of government ethnographic studies, alleging they failed to consult the Gitxaala.
As a result, the lawsuit says the First Nation “has suffered loss and harm, including economic losses.”
Elected Chief Councillor of Gitxaała Nation Lou Ga Gwelks (Linda Innes) said that to date, the consultation process has been like a “box-ticking exercise” used to “clear the way to development and resource extraction.”
“We have always been here,” said the chief councillor in an interview. “We’ve had continuous occupation of the land and we’ve been denied that by Canada by their historic racist policies.”
In an email, Prince Rupert Port Authority spokesperson Olivia Mowatt said the port was unable to immediately respond to the lawsuit due its “legally sensitive nature.”
The Attorneys General of Canada and B.C. did not respond to requests for comment by the time of publication.
Lawsuit alleges other First Nations favoured despite lack of historical claim
Located on the shortest Pacific shipping route linking East Asia with North America, the port of Prince Rupert is 36 hours closer to Shanghai than Vancouver.
The port also claims to be built on the North America's deepest harbour, making approach times two to six hours less than many other major ports in the region.
Last year, the port moved more than 23 million tonnes of cargo — a slight decline from the previous two years when the port moved an estimated $60 billion in goods.
Canada and the Prince Rupert Port Authority signed an economic benefits agreement with the Lax Kw’alaams and Metlakatla First Nations in 2011.
In the intervening years, the port authority and federal government undertook ethnographic reports assessing Indigenous occupation of the area. The court document claims those studies were never disclosed to the Gitxaala until years later.
The port and Canada, therefore, failed to consult with the nation on the “content, accuracy, or significance” of the findings. The B.C. government, meanwhile, “has refused to accept Gitxaała’s own expert reports” and “continues to consult with Gitxaała based on erroneous information.”
According to the court document, the Crowns have reasoned that at the time of European contact, the Prince Rupert Harbour area was occupied by the Lax Kw’alaams and Metlakatla First Nations.
But the actual record, claims the lawsuit, shows the Lax Kw’alaams occupied and used an area upriver from the mouth of the Skeena. It was only after contact that the groups migrated down to the Prince Rupert Harbour, claim the plaintiffs.
They claim the groups abandoned the area around the port of Prince Rupert in 1846 when the Hudson’s Bay Company established a post at Port Simpson. Metlakatla “did not in fact exist” before 1846, but came together from a number of other nations under the religious leadership of the Anglican missionary William Duncan.
The defendants based their assessments on unsupported evidence and weighed competing claims that “favoured other nations over Gitxaała,” the lawsuit alleges.
Innes said the approach taken by both B.C. and Canada is to incentivize First Nations to accept agreements that compromise their rights and title so they can avoid being left with nothing. The result creates divisions and locks Indigenous peoples in competition with one another, she said.
“We are one of the most ancient societies in the region,” said the Gixtaala chief councillor. “We’ve been challenged by the Crown for years and years, and denied our meaningful place within the territory.”
Lawsuit seeks declarations and damages
In contrast to government findings, a 2017 report commissioned by the Gixtaala found a “strong” claim to title around the Prince Rupert harbour area.
The goal of the lawsuit is to “tell the Gitxaała Nation story and to seek justice, respect and acknowledgement of our inherent rights,” said Sim’oogit Łabiks (Elmer Moody), hereditary chief and co-chair of Lu Sa Hax Hoyaxgm Wil’nat’aał, a joint committee of hereditary chiefs and elected council.
“Over and over again we have provided the evidence to the Crowns that our claim to these territories are strong,” said the chief in a statement.
The claim also alleges governments have failed to uphold commitments to reconciliation made under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Declaration on the Rights of Indigenous Peoples Act (DRIPA).
Those failures, adds the court document, have cost the Gixtaala the ability to reasonably protect its lands and negotiate accommodations around industrial developments in the Prince Rupert Harbour.
The nation seeks legal declarations that the defendants breached their duties to consult with the Gixtaala and unspecified damages. When asked what those damages could add up to, Innes said their value is not clear because the Gixtaala have been left out of meaningful consultation.
Wherever the litigation goes, the Gixtaala chief councillor hopes it will help answer two fundamental questions.
“How do we secure a future for our people? How do we honour our people?” she said.
None of the claims have been tested in court.
