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Russ Diabo

Kahnawake Mohawk

The headlines in the media have heralded big changes to come. “Wet'suwet'en agreement outlines steps for transferring control of territory to traditional leadership,” reads the CBC. “For the Wet'suwet'en nation, formal land rights may be on the horizon,” says Macleans.

Coming on the heels of cross-country protests and blockades against the Coastal GasLink pipeline, which would pass through Wet’suwet’en territory, the deal negotiated between the federal and B.C. governments and the Wet’suwet’en Hereditary Chiefs is being billed by many as a landmark in recognizing Aboriginal rights and title.

But the initial memorandum of agreement, now published by a local newspaper, shows that it is anything but.

It is undoubtedly true that negotiations would not have happened were it not for the political and economic pressure that came from Indigenous and non-Indigenous supporters taking actions alongside the Wet’suwet’en to “shut down Canada” during the month of February 2020. I also really admire the sovereignty and courage exercised by the Wet’suwet’en Hereditary Chiefs and Clans, who are opposed to any pipeline going through their territory.

But we must be honest about what a close reading of the signed Memorandum of Understanding shows: the federal government’s colonial web of policies has entrapped the Wet’suwet’en Nation.

Freda Huson, spokesperson for the Unist’ot’en and founder of the Unist’ot’en Healing Centre, along with Wet’suwet’en Hereditary Chief Na’moks. (Photo Russ Diabo)

Wet’suwet’en Memorandum of Understanding

After three days of negotiations on March 1, 2020, the federal and provincial Ministers responsible for Indigenous issues emerged with Wet’suwet’en Hereditary Chief Woos to announce a tentative agreement had been reached. The three representatives confirmed that the agreement did not include the CGL pipeline or the RCMP presence in Wet’suwet’en territory.

The details of this agreement were to be kept confidential until the Hereditary Chiefs had time to consult with their Clans about whether to accept the agreement or not.

Unfortunately for the Wet’suwet’en Hereditary Chiefs, the COVID-19 pandemic hit B.C. and Canada cutting the internal discussions about the agreement short as gatherings of more than 50 people were prohibited by B.C. health authorities and social isolation at home was imposed by the federal and provincial governments.

I had hopes that, because the Wet’suwet’en are a traditional government recognized by the Supreme Court of Canada in their 1997 Delgamuukw-Gisdayway decision, their legal situation might push the federal and B.C. governments beyond their one sided, unfair land claims and self-government policies.

However, looking at the Wet’suwet’en MOU it seems to me that the federal and B.C. governments have not allowed the Wet’suwet’en Nation to escape the same racist, colonial policy framework that other First Nations across Canada are facing.

In early May, a top bureaucrat of the Canadian government indicated as much. During a Parliamentary Committee session, Conservative M.P. Jamie Schmale asked Deputy Minister Daniel Watson from the Crown-Indigenous Relations Department if the federal government was moving forward with the MOU in the face of concerns from Chiefs who said that because of the pandemic there hasn’t been “full and informed engagement on the document” within the Wet’suwet’en Nation.

Mr. Watson responded that:

The process of engaging [Indigenous groups] is one that we have been involved with in many other negotiations across the country. It will be very similar. The standards that have been set by the courts and the expectations for everybody around the durability of those agreements rely exactly on what you're pointing out. I can assure you that will happen over time and that the implementation and conversations about any substantive issues will very much require the full consent of the nation.”

The “other negotiations across the country” Mr. Watson is referring to are the federal negotiations to define Aboriginal and Treaty rights occurring at various Comprehensive Land Claims, Self-Government and “Recognition” Tables. The newest category of these tables are what the Trudeau government calls “Recognition and Self-Determination” tables.

As of January, there are more than 80 ongoing negotiations involving some 390 First Nations, Métis and Inuit communities with a total population of more than 760,000 people.

The signal the federal Deputy Minister of Crown-Indigenous Relations sent to the Parliamentary Committee was that the Wet’suwet’en MOU will be subject to the same policy framework for negotiations, as all other Indigenous (First Nations, Metis Inuit) groups are facing across the country.

The federal policy framework mainly consists of the 10 Principles for Indigenous Relations, the so-called ‘Inherent Right’ policy, the Comprehensive Land Claims policy, which in B.C. is implemented through the B.C. Treaty Negotiations policy, the federal version of the UN Declaration on the Rights of Indigenous Peoples and the B.C. Bill 41 UNDRIP Implementation Law. When First Nations accept the outcome of that policy framework, will end up as ethnic municipalities, with their reserve lands converted into private property and their rights to the overwhelming bulk of their traditional territories extinguished in perpetuity.

T[2] OU has positive “recognition” language whereby Canada and BC recognize that “Wet’suwet’en rights and title are held by Wet’suwet’en houses under their system of governance…throughout the Yintah” and “Canada and BC recognize Wet’suwet’en commit to the negotiations…[and] BC commits to engage in those negotiations consistent with the Declaration on the Rights of Indigenous Peoples Act.”

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However, the language of the MOU changes to include conditions on the matter of negotiating an agreement. On one hand the MOU shows that while the Crown governments (Canada & B.C.) commit to negotiations for “Legal recognition that the Wet’suwet’en Houses are the indigenous governing body holding the Wet’suwet’en aboriginal rights and title in accordance with our Innc Nuaden” and “Legal recognition of Wet’suwet’en title as a legal interest in land by Canada and BC”. [3]

On the other hand the MOU provides that “There will be no impact on existing rights and interests pertaining to land until jurisdiction is transferred to the Wet’suwet’en”.

This is where the other limiting conditions in the MOU kick in:

- Jurisdiction that flows from Wet’suwet’en aboriginal rights and title will be transferred to Wet’suwet’en over time based on an agreed upon timetable

- 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

- Title will be implemented and jurisdiction (exclusive or shared) will be transferred once specifics on how aboriginal and crown titles interface have been addressed – this includes the following

I. transparency, accountability, and administrative fairness mechanisms including clear process and remedies to address grievances of any person, pertaining to all areas of shared and exclusive jurisdiction

II. 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 to the extended required to understand the interface between the Crown and the Wet’suwet’en jurisdiction. (emphasis added)

The MOU ends by stating “This agreement is to [be] ratified by Canada, BC and the Wet’suwet’en under their respective systems of governance.”

It seems to me that the text of the MOU indicates that the federal and B.C. governments are interpreting the Delgamuukw-Gisdayway and Tsilhqot’in decisions vis-à-vis the Wet’suwet’en Nation as only possessing “potential” not “established” Aboriginal title, since the use of the term “will be transferred to Wet’suwet’en” in the MOU is an indicator that the Crown governments will take a narrow legal position in the negotiations. They will stake out the position that the Wet’suwet’en still haven’t proved they have Aboriginal Title according to Canadian law and the federal and B.C. governments will decide in the negotiations what Wet’suwet’en title and rights will be “recognized” in any final agreement.

Negotiating what is “exclusive” versus what is “shared” in the list of MOU subject matters will likely be difficult, not to mention “specifics on how aboriginal and crown titles interface”.

The only “recognition” of Aboriginal title in Canada is the grant of Aboriginal title by the Supreme Court of Canada in the 2014 Tsilhqot’in decision and that was only for part of the Tsilhqot’in Nation Territory. Even then some of the more dangerous aspects of the Tsilhqot’in decision are:

- The SCC ruled that based upon the assertion of European sovereignty the Crown has “Radical or underlying title”, thus keeping the racist Doctrine of Discovery alive in Canada;

- “The claimant group bears the onus of establishing Aboriginal title”;

- “Governments can infringe Aboriginal rights conferred by Aboriginal title”;

- “As a general proposition, provincial governments have the power to regulate land use within the province. This applies to all lands, whether held by the Crown, by private owners, or by the holders of Aboriginal title.” (emphasis added)

- “Provincial regulation of general application will apply to exercises of Aboriginal rights, including Aboriginal title land, subject to the s. 35 infringement and justification framework.” (emphasis added)

In addition to the threatening aspects of the Tsilhqot’in decision noted above, there is nothing in the SCC decision that addresses the jurisdiction or laws of the Tsilhqot’in, which means the pre-existing sovereignty or self-government of the Tsilhqot’in wasn’t addressed in the case. In other words, the court did not rule on whether or not the federal government’s Aboriginal self-government policy is constitutional or not.

Despite all of this, I wish the Wet’suwet’en Hereditary Chiefs and Clans success in getting consensus and building unity within their Nation, because in light of the racist, colonial policy and law they are still facing, their struggle for justice remains an elusive target!

In the end, the federal and B.C. governments each hold an effective veto in the negotiation process, right up to the requirement for ratification in Canada’s Parliament and B.C.’s Legislature.

It will likely take a broad political movement across Canada, even bigger than we have seen so far, to change the racist, colonial policy and legislative system in Canada. But so far the trend seems to be for the majority of band councils accepting, not resisting, to enter into Canada’s Federation at the bottom as 4 level ethnic governments.

Russ Diabo is a member of the Mohawk Nation at Kahnawake. He is an Indigenous policy analyst with decades of experience. Russ also was a 2018 candidate for the position of Assembly of First Nations National Chief. Follow him on Twitter at @russdiabo and on his website at