Court battle for Lelu Island dismissed for second time

Prince Rupert Northern View | Shannon Lough | March 1 2018

Dismissed once in federal court, the Gitwilgyoots Tribe case for Lelu Island has now been dismissed in the federal court of appeal.

Donald Wesley, also known as Yahaan of the Gitwilgyoots Tribe, began his court battle for Lelu Island in October 2016 to overturn the federal government’s approval of the $36-billion Pacific Northwest LNG (liquefied natural gas) terminal on the island.

His case was first dismissed in federal court on July 26, 2017 by Justice Robert Barnes, who found Yahaan had failed to produce evidence of community support. On Sept. 19, 2017, Yahaan filed an appeal with the federal court on the grounds that there was “no evidence that any Gitwilgyoots members oppose any of Yahaan’s views”.

But his appeal faced a hurdle when Lax Kwla’aams Band Mayor John Helin, on behalf of other members of the nine tribes of Lax Kw’alaams, filed a motion to dismiss Yahaan’s appeal based on “mootness” — meaning the issue is of no relevance since the Pacific NorthWest LNG project has been cancelled.

In a separate motion, the Minister of the Environment and Climate Change asked the court to halt the legal process for the appeal until the environmental approval over the LNG project on Lelu Island expires in November 2019. “There is a slight possibility that the project could be revived before the date,” the court document states.

Yahaan opposed both motions. He argued the project could be revived and that his application should proceed “because the subject matter of application is the Gitwilgyoots’ right to be consulted as opposed to the decisions authorizing the project,” as stated in the federal decision.

Justice Denis Pelletier, with the support of two federal judges, decided in Ottawa on Feb. 16 to dismiss the appeal and support the motion brought forward by Lax Kw’alaams Band and Mayor Helin. The appeal was dismissed with costs to all parties. None of the party members were present in the Ottawa court when the decision was made.

Does this mean Yahaan’s legal battle to be recognized as a representative of the Gitwilgyoots to be consulted for further projects is over?

“We are still reviewing the FCA decision and have not yet received instructions on any further steps,” Richard Overstall, Yahaan’s lawyer, said.

In Sept. 2015, Yahaan began occupying Lelu Island and has since developed a camp there and raised a totem pole on a mound overlooking where the Pacific Ocean meets the Skeena River.

More than 100 people came to support the totem pole being raised on Oct. 20 to signify the Gitwilgyoots claim to the land — land that also happens to be Crown land within the managerial jurisdiction of the Prince Rupert Port Authority.

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