The Wet’suwet’en will be the first Indigenous Nation in Canada to have their Aboriginal title over their territory recognized by agreement with the federal and provincial governments, according to materials released today by the Office of the Wet’suwet’en. This includes a memorandum of understanding on Wet’suwet’en title that is scheduled to be signed by ten hereditary chiefs of the Wet’suwet’en Nation and representatives of the B.C. and Canadian governments on May 14, 2020.
“Canada and BC recognize that Wet’suwet’en rights and title are held by Wet’suwet’en houses under their system of governance,” states the agreement.
Negotiations will continue over the next year as to how “aboriginal and crown titles interface” in order to determine how to implement title and transfer jurisdiction in several areas — including child and family wellness, wildlife, and lands and resources — to the Wet’suwet’en.
“There will be no impact on existing rights and interests pertaining to land until jurisdiction is transferred to the Wet’suwet’en,” continues the agreement, explaining that “in some cases the jurisdiction that is transferred to the Wet’suwet’en will be exclusive and in some cases it will be shared with Canada or BC.”
The draft agreement was released today by the Office of the Wet’suwet’en, a non-profit organization that represents the nation’s hereditary chiefs.
This followed yesterday’s release by elected chiefs representing four of six Wet’suwet’en band councils, which called for the MOU to be scrapped and for Minister of Crown-Indigenous Relations Carolyn Bennett to resign, a request that Prime Minister Justin Trudeau rejected.
The band councils have complained about a process they feel is rushed and consultation meetings that were cancelled or moved to Zoom as a result of the COVID-19 pandemic. They say they have not been sufficiently consulted and should have been included in the negotiation process.
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Resource benefit agreements on the line
Longstanding tensions exist between the elected band council chiefs, who govern reserves where many Wet’suwet’en people live, and the hereditary chiefs, representatives of a traditional governance structure whose authority over Wet’suwet’en territory was affirmed by Canada’s Supreme Court in the landmark 1997 Delgamuukw decision.
While the Wet’suwet’en hereditary chiefs have been steadfast in their opposition to the controversial Coastal GasLink pipeline, most elected band councils chose to enter into resource benefit agreements with the pipeline company, which provided them with cash payments.
The hereditary chiefs maintain that the band councils do not have authority to approve the pipeline and that government and industry sought out the wrong partner for negotiations. Band councils were created through the Indian Act to administer reserve lands, and their authority is limited to management of those reserves — a small fraction of the territory held collectively by the Wet’suwet’en Nation.
The MOU does not impact the Coastal GasLink project or change the rights and powers of band councils. It “will not affect the rights of Indian Act Bands or other land rights within the Yintah [territory] as it exists since the imposed Indian Act,” the hereditary chiefs wrote in a May 8, 2020, letter.
But the agreement does establish that any future resource project that may cross Wet’suwet’en territory must have the approval of the hereditary chiefs. This undermines the band councils’ ability to negotiate resource benefit agreements down the line.
In their statement repudiating the agreement, the four band council chiefs wrote that they have informed provincial and federal ministers that “the process they have conducted to date is completely unacceptable and disrespectful to our people.”
“The elected councils are the existing legal authority in the territories and are actively involved in all the issues included for negotiation in the MOU. We feel it is important to reiterate that we agree with the pursuit of negotiations for Wet’suwet’en Rights and Title, but we take issue with the improper consultation with respect to an MOU that would lead to negotiations.”
‘Clarity’ on Wet’suwet’en governance structures
For over two decades, since the Delgamuukw decision, the Wet’suwet’en, like other Indigenous Nations, have been stuck in the modern treaty-making process. Not only is this process long and expensive, but it requires the extinguishment of pre-existing rights.
A letter from the hereditary chiefs dated May 11, 2020, suggests that band councils see the MOU as just another treaty agreement where Indigenous Peoples “negotiate away” their rights and title. Arguing that is not the case, the hereditary chiefs say the agreement recognizes rights the Wet’suwet’en people have been fighting for over generations of negotiations and court cases.
The letter goes on to note that concerns were raised by some band councils about the Office of the Wet’suwet’en, the non-profit directed by the hereditary chiefs.
“As you may know, we were compelled after the Gisday Wah [Delgamuukw] decision to create a society to enter the treaty process. That was not our choice. We now have the opportunity to present how proper Wet’suwet’en government can operate based on our House and clan system.”
One requirement established by the MOU is “clarity on the Wet’suwet’en governance structures, systems, and laws, that will be ratified by the Wet’suwet’en and will be used to implement their title.” What that will look like in practice is unclear.
“This is just the beginning,” reads a backgrounder posted by the Office of the Wet’suwet’en, “but that recognition means that they will not be able to ever again approve a project without your government being fully part of the decision as to what will and will not happen on your territory.”
While the B.C. and Canadian governments have insisted that the Coastal GasLink pipeline will be built since they have already approved the project, the agreement likely means that no future resource projects will go ahead based solely on the acquiescence of Wet’suwet’en band councils.
The Coastal GasLink approval process led to RCMP raids on non-violent Wet’suwet’en sites followed by solidarity blockades that shut down rail lines and economic infrastructure across the country last February.