Wet’suwet’en Band Councils Still in the Dark on Deal with Hereditary Chiefs

Expected this week, deal will implement decades-old Delgamuukw decision on rights and title
March 12, 2020 Updated: March 12, 2020

More than a week after federal and provincial ministers made a deal with Wet’suwet’en hereditary chiefs protesting a natural gas pipeline, elected Wet’suwet’en leaders say they haven’t yet seen details of the deal, which will implement a 22-year-old Supreme Court of Canada decision over aboriginal rights and title in their region.

“We were excluded from the process,” said Wet’suwet’en First Nation Chief Maureen Luggi of the meetings held over three days between the hereditary chiefs and Indigenous-Crown Relations Minister Carolyn Bennett and her provincial B.C. counterpart Scott Fraser.

Luggi’s community is one of six Wet’suwet’en First Nations in northeastern British Columbia whose interests are entwined in both the landmark 1997 Delgamuukw decision and the Coastal GasLink pipeline, five of which have signed deals related to the $6.6 billion project.

After RCMP arrested several protesters on Feb. 6 at a blockade erected on a road used by Coastal GasLink to supply construction efforts, solidarity protests erupted across B.C. and at railways in Ontario and Quebec, bringing freight transportation to a standstill.

The meetings with the hereditary chiefs aimed to resolve the crippling rail blockades held in protest against the pipeline.

This week, Luggi expects the Office of Wet’suwet’en hereditary chiefs will present her community with what she anticipates is a memorandum of understanding over asserting aboriginal land title recognized by the decades-old Delgamuukw decision, and resulting from the Bennett-Fraser meetings.

“Whether or not we agree to this MOU is really something we are not able to answer because we have to see it,” she told The Epoch Times, adding that “there’s a lot of misinformation out there” regarding who speaks for the Wet’suwet’en.

“The Office of Wet’suwet’en would not exist if there weren’t the six Wet’suwet’en communities—they need us in order to exist. … So it would have to be the hereditary chiefs and the elected band councils working together because we all represent the same people,” she said.

When Frank Alec, a.k.a Chief Woos, one of the hereditary chiefs, emerged from the meetings with Bennett and Fraser on March 2 after they reached an agreement, he told reporters the chiefs remain “opposed to any pipeline.”

“We’re informing the federal government and we’re informing the province that Delgamuukw is where people need to start respecting, and this is where it starts.”

Title Versus Sovereignty

While the Supreme Court’s Delgamuukw decision established that Wet’suwet’en people as a whole had not surrendered aboriginal title or had it extinguished by the Crown, University of Calgary political scientist Tom Flanagan said the difference between title and sovereignty is key.

“Title refers to ownership over land, but title is not the same as sovereignty. Sovereignty is a clinical, governmental concept which is the right to make laws and to enforce them. Title is an economic concept of ownership of land, the right to derive benefits from that land,” Flanagan explains.

“Regardless of who’s got control over the land—whether it’s hereditary chiefs or the band councils—the Crown has the right of infringement. That could be either the federal Crown or the provincial Crown depending on the circumstances. … Infringement is described in very broad terms in the Delgamuukw decision.”

The decision is explicit that Aboriginal title is something that “cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation.”

“Decisions with respect to that land are also made by that community.”

In terms of infringement on Aboriginal title by provinces or the federal government, the ruling lays out a substantive test for these potentialities, acknowledging that “that the fiduciary relationship between the Crown and aboriginal peoples demands that aboriginal interests be placed first.”

“However, the fiduciary duty does not demand that aboriginal rights always be given priority,” it reads. “Aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands.”

After Bennett failed to invite elected band councillors or chiefs to the meetings with hereditary chiefs, Luggi says and her council “did express concern to [Bennett] that she does have a fiduciary obligation to Indian band councils and she also excluded us from that meeting with the Office of the Wet’suwet’en.”

Dan George, elected chief of the Ts’il Kaz Koh First Nation—another Wet’suwet’en community that backs the LNG pipeline project and was also snubbed by the meetings—told CBC Radio this week that he’s “not signing no titling rights agreement.”

“We need to figure out our governance structure within the hereditary chief system first and foremost … all these protests started with our governance system,” George said during an interview on As It Happens, where, like Luggi, he noted the Ts’il Kaz Koh haven’t yet seen the MOU.

“My concern is really the governance,” he said. “So if the people are voting for me are all Wet’suwet’en and voted for LNG, that tells you that they’re all in support of it already. And that goes with the rest of the bands also.”

No Right to Bar Development

In addition to five Wet’suwet’en band councils onside with the pipeline that will transect their traditional territory, an additional 15 First Nations have also signed deals with Coastal GasLink making support for the project along the 670 km right-of-way unanimous among elected indigenous groups.

George also noted that band councils represent the interests of hereditary chiefs and their respective clan members who live on reserves, derive benefits, vote in band elections, and run for leadership positions.

From Flanagan’s study of the Delgamuukw decision and extensive writing on the subject of aboriginal rights as defined by Canadian jurisprudence, Delgamuukw “is the locus classicus of the notion of reconciliation,” he said.

“To reconcile the pre-existence of First Nations with the sovereignty of the Crown … Delgamuukw doesn’t say that the hereditary chiefs have the right to make laws and control the so-called traditional territory,” he explains.

“It’s being misrepresented in mainstream media, as if the Wet’suwet’en, whoever makes the decision, has the right to bar development on their land. They don’t. And in this case I don’t know if you would argue that infringement is taking place or not, because the proponent [Coastal GasLink] got the agreement of all the band councils.”

As far as Luggi is concerned, any deal about asserting aboriginal title on Wet’suwet’en land is entirely separate from the Coastal GasLink project. She said her band council “has a lot of work to do if we decide we’re going to go along with the [Office of the Wet’suwet’en MOU] process; if we don’t go along with them, we still have a lot of work to do.”

“In our community, the project is not up for discussion and we’re moving forward with a lot of other initiatives in the community. So we just look forward to discovering whatever it is that they present to us and whether we’re going to work together or not.”