The agreement will test new waters when it comes to the settling of Indigenous territorial claims, but will not resolve the long-standing pipeline conflict

After two months of deliberation, the Wet’suwet’en have agreed to sign a landmark document with the provincial and federal governments that could change the future of Indigenous rights and title negotiations in B.C.

“The Wet’suwet’en People have reached consensus and have agreed to sign a memorandum of understanding between the federal government and province of B.C. to resume the full management of our yintahs [traditional territory] using our governance system,” Hereditary Chief Smogelgem tweeted on Saturday.

Details of the memorandum have been kept confidential, but a March 1 joint statement released by the province of B.C., the federal government and the Wet’suwet’en hereditary chiefs noted that, if ratified, the agreement would “implement [Wet’suwet’en] title on an expedited basis.”

That statement also noted the memo would not resolve outstanding conflict concerning the pipeline: “All parties at the table recognize that the differences relating to the [Coastal GasLink] project remain.”

But while the clans have agreed to sign the memorandum, the Gidimt’en clan released a statement on Monday saying the agreement doesn’t go far enough.

“Along with thousands of our supporters across Turtle Island, we hoped that these discussions could end the conflict on the ground in Wet’suwet’en territory,” the Gidimt’en clan said in the statement. “Although this is a step in the right direction, [Coastal GasLink] continues to trespass on Wet’suwet’en territory in direct violation of the eviction order enforced by the Hereditary Chiefs.”

The statement noted the success or failure of the agreement, which has yet to be formally ratified with the province and the federal government, would be determined “within the next few months.”

“Until then, we continue to oppose this project and demand that [Coastal GasLink] and RCMP get out and stay out of Wet’suwet’en yintah,” the statement concludes.

The memorandum was developed after a heated territorial dispute broke out in Wet’suwet’en territory concerning the construction of the 670-kilometre Coastal GasLink pipeline, destined to transport fracked gas from northeast B.C. to LNG export facilities in Kitimat. Enforcing a court-ordered injunction, the RCMP raided Wet’suwet’en encampments along the route of the pipeline, arresting chiefs, matriarchs and their supporters.

Related: In photos: Wet’suwet’en matriarchs arrested as RCMP enforce Coastal GasLink pipeline injunction

The provincial and federal government both declined to provide comment on the Wet’suwet’en announcement, telling The Narwhal in separate emails there would be “more to say in the coming days.”

Wet’suwet’en hereditary chiefs finalized the draft agreement on Feb. 29 with Scott Fraser, B.C. minister of Indigenous relations and reconciliation, and Carolyn Bennett, federal minister of Crown-Indigenous relations, who said they’d return to ratify the memorandum if all the clans agreed to it.

It is unclear if Wet’suwet’en Peoples still need to vote on the memorandum before it is ratified with the province and federal government.

The Narwhal reached out to three Wet’suwet’en chiefs, Chief Na’Moks, Chief Smogelgem and Chief Hagwilnegh, and the Gidimt’en clan but did not receive a response in time for publication.

Coastal GasLink construction remains ongoing amid the pandemic despite growing concerns that its work camps could facilitate the spread of the virus within remote communities.

A new way forward for land claims?

Just two short months ago, the conflict on Wet’suwet’en territory dominated national headlines. The Wet’suwet’en traditional territory comprises 22,000 square kilometres in central B.C.

The Coastal GasLink pipeline crosses Wet’suwet’en territory and, although approved by the province, was vocally opposed by Wet’suwet’en hereditary chiefs.

The pre-dawn raids in February on the Wet’suwet’en camps by the RCMP, armed with tactical weapons and police dogs, sparked outrage and protest across the country by Wet’suwet’en supporters, many of whom occupied the B.C. legislature. Widespread solidarity actions led to the federal and provincial governments agreeing to sit down with hereditary chiefs to resolve outstanding legal issues around Wet’suwet’en rights and title.

The conflict stoked national debate about the significance of Indigenous title claims, particularly in B.C. where the majority of the province is unceded land with unresolved territorial claims. Against Canada’s own legal requirements, many of those territorial claims have been treated as non-existent, with unceded land considered Crown land.

Traditionally, land title claims are negotiated through modern-day treaties or, as in the case of the Tsilhqot’in First Nation, are fought within the courts. Some call this Canada’s “prove it” approach. Rather than acknowledging Indigenous rights and title to begin with, which exist according to both Indigenous law and Canadian law, First Nations are forced to prove it in court.

Related: How the Wet’suwet’en crisis could have played out differently

This approach puts “the burden of proof on Indigenous nations to ‘prove’ to state institutions that their pre-existing title and governance exist in order for that title to apply,” wrote Eugene Kung and Gavin Smith, two staff lawyers from West Coast Environmental Law.

In the 1997 Delgamuukw decision, the Supreme Court of Canada recognized the Wet’suwet’en and Gitxsan Peoples had never surrendered their land or had their title extinguished.

The decision recognized Aboriginal title and the right to actively manage the land and benefit economically from its use, but found that such title must be proven in the courts. The decision also ruled Aboriginal title is a communally-held right that the province does not have the power to extinguish.

The Wet’suwe’ten and Gitxsan were invited to return to court to formally resolve their territorial claim, but that did not happen.

Under this new memorandum of understanding, it’s possible they won’t have to.

Lawyer Jack Woodward, who drafted Section 35 of the Constitution which enshrines Indigenous rights and has represented numerous First Nations in landmark cases, said until the agreement is public it’s difficult to tell what the ramifications may be.

“It proves that blockades make news, and news gets politicians into the action,” he told The Narwhal. “But whether that results in a better or worse agreement I don’t know, we don’t know, because we haven’t seen the agreement.”

Agreement not in exchange for pipeline consent

While the memorandum of understanding is meant to create a path to negotiate Wet’suwet’en rights and title, it did not resolve the battle over the Coastal GasLink project. Wet’suwet’en hereditary chiefs remain opposed to the project, while the B.C. and federal governments were clear they remained committed to the pipeline.

The pipeline project is central to the province’s years-long effort to develop an LNG export industry. In particular the pipeline will feed the LNG Canada project, which will turn fracked gas from the province’s northeast into liquified natural gas for export to Asia.

The NDP government offered millions in direct and indirect subsidies to corporations behind LNG Canada. In February, Premier John Horgan said cancelling the Coastal GasLink pipeline was “not an option.”

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Freda Huson stands in ceremony while police enforce an injunction against opponents of the Coastal GasLink pipeline in February, 2020. An RCMP helicopter can be seen overhead. Photo: Amber Bracken / The Narwhal