Industry, government pushed to abolish Aboriginal title at issue in Wet’suwet’en stand-off, docs reveal

Documents obtained by The Narwhal reveal representatives of resource industries and government sought the ‘surrender’ of Indigenous land rights in the wake of the precedent-setting Delgamuukw decision, which affirmed Aboriginal title on unceded territory

RCMP helicopter Wet'suwet'en Unist'ot'en

An RMCP helicopter takes off after Unist’ot’en spokesperson and founder, Freda Huson, refused to negotiate surrender with the police on Feb. 8. Photo: Amber Bracken / The Narwhal

he B.C. government and corporate lobbyists representing major resource industries sought the “surrender” of First Nations land rights immediately following the Delgamuukw decision, a precedent-setting legal ruling that established Aboriginal title to unceded land, according to Freedom of Information (FOI) documents obtained by The Narwhal.

The records, from B.C.’s Ministry of Aboriginal Affairs, provide a glimpse for the first time of a corporate lobbying effort urging government to push First Nations to surrender their newly recognized title rights through modern treaties to achieve “certainty” for commercial interests.

Internal emails, memos and confidential briefing notes also show that, immediately after the Delgamuukw decision came down from the Supreme Court of Canada on Dec. 11, 1997, B.C. government officials discussed tactics to fight land rights with legal challenges, to curb direct action or litigation by First Nations and to use federal money intended for the healing of residential school survivors to make treaty negotiations more attractive.

The push for “certainty” for industry operating in B.C. remains a strong focus for government to this day.

The Delgamuukw decision — prompted by a case launched in the 1980s by Wet’suwet’en hereditary chiefs and the neighbouring Gitxsan Nation — cuts to the heart of the Wet’suwet’en nation’s on-going opposition to Coastal GasLink’s plan to build a 670-kilometre fracked gas pipeline through the nation’s traditional territory to LNG export facilities in Kitimat.

In the decision, Supreme Court justices declared that nations like the Wet’suwet’en, who had never signed treaties, still hold unceded rights to their lands.

A supporter at Unist’ot’en camp in Wet’suwet’en territory

A supporter at Unist’ot’en camp in Wet’suwet’en territory Jan. 15. Arrests of supporters at the camp are expected to take place Sunday, Feb. 9. Photo: Amber Bracken / The Narwhal

The threat of Aboriginal title

In early January Wet’suwet’en hereditary chiefs issued an eviction notice to Coastal GasLink after the B.C. Supreme court extended an injunction against members of the Wet’suwet’en and their supporters who are preventing the company from accessing contested work sites along the pipeline corridor near Houston, B.C. A year earlier, in January 2019, the RCMP enforced the injunction and arrested 14 people in a controversial move that drew international attention

Days after the eviction notice was served, Wet’suwet’en hereditary chiefs met with the B.C. RCMP’s commanding officer, deputy commissioner Jennifer Strachan.

Hoping to avert a repeat of last year’s much-criticized police action, Chief Hagwilnegh (Ron Mitchell) of the Wet’suwet’en’s Small Frog clan offered the deputy commissioner a piece of advice: consult the Delgamuukw decision.

“Read that, before you give out your orders,” he recalled telling her.

Although the Delgamuukw ruling happened almost 25 years ago it is still considered one of the most important rulings on Indigenous land rights in Canadian history.

For 150 years prior to the ruling, all levels of government insisted Aboriginal title had been extinguished and thus had no impact on decision-making.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today.”

The Delgamuukw ruling found Aboriginal title is a unique, collectively held interest in the land that could grant Indigenous peoples exclusive occupation and require consent prior to resource development or other activities that could affect their territory.

The ruling sent shockwaves through the country, promising a transformation in Indigenous peoples’ rights to govern their ancestral territories.

Hagwilnegh, who worked as a translator for Elders testifying in court in their Wet’suwet’en language, remembered being hopeful that Aboriginal title would be reconciled with Crown title, as the federal Supreme Court judges had directed.

“If the government had taken the approach of co-existence advocated by the court, we wouldn’t be dealing with what we’re dealing with today,” he told The Narwhal.

But the government and resource companies had other ideas.

Freda Huson Brenda Michell RCMP Unist'ot'en

Freda Huson, centre, and her sister, Brenda Michell, stand in ceremony while they wait for police to enforce Coastal GasLink’s injunction. Photo: Amber Bracken / The Narwhal

‘The decision makes the need for certainty through surrender all the more clear’

In a committee formed by the B.C. NDP government of Glen Clark — to allow oil and gas, forestry, cattle, real estate and mining associations to offer advice about treaty negotiations — various lobbyists pushed the government to limit the consequences of the Supreme Court decision, according to the FOI documents.

According to one memo, detailing a meeting that took place one day after the Delgamuukw ruling, Marlie Beets, then vice-president of the BC Council of Forest Industries, remarked that she had spent the previous hour “trying to calm” the CEOs she represented.

“[Delgamuukw] has only created more uncertainty and we are very concerned by how governments will react to the court’s findings,” Beets said. “The decision makes the need for certainty through surrender all the more clear. We see no other alternative.”

Marlie Beets, certainty through surrender

A document released through Freedom of Information rules quotes Marlie Beets relaying the anxiety of CEOs with the BC Council of Forest Industries in response to the Delgamuukw decision. Beets notes the ruling makes the need for economic “certainty through surrender” of Aboriginal title “clear.”

Mike Hunter, then the president of the Fisheries Council of B.C., urged the government to “downplay the expectations that Aboriginal leaders have.”

Mary MacGregor, then director of the B.C. Cattlemen’s Association, promised that “we will be putting great pressure on the provincial government to commit to a cede, release and surrender approach.”

Several days later, a new Delgamuukw strategy team formed by the ministry noted in a memo that “the oil and gas industry in particular has expressed concern about their ability to continue to do business in the province absent a clear direction from the government on how it will address the implications of the Delgamuukw decision.”

The following spring, John Watson, then-regional B.C. director of the federal Ministry of Indian Affairs wrote in a letter that both provincial and federal governments “are under tremendous pressure to ensure that we achieve the level of certainty required to assure business and other third parties.”

Indigenous-led opposition to unwanted natural resource projects and infrastructure has been bolstered by decisions such as Delgamuukw, Haida Nation and Taku River Tlingit.

In B.C., as in Quebec, Yukon, the Northwest Territories and the Atlantic provinces, the vast proportion of land has never been subject to treaty. Although often referred to as public or Crown land, most of these areas are the unceded homelands of Indigenous nations.

These communities are increasingly laying legal claim to their territory through the courts. A 2014 decision, for instance, granted the Tsilhqot’in nation Aboriginal title to 438,000 hectares of its traditional territory. It took the Tsilhqot’in 25 years to win its legal challenge in the Supreme Court of Canada. The B.C. and federal government fought the title claim from start to finish.

Following the Delgamuukw decision, the federal Supreme Court indicated the Wet’suwet’en could make a similar legal claim to its 22,000 square kilometre territory. Notably, the judges urged the government to seek to reconcile Aboriginal title with Crown title through negotiations, in the spirit of what it called “the honour and good faith of the Crown.”

But the FOI documents show the priority for both B.C. and federal governments was to try to resolve the economic and legal uncertainty for resource industries seeking access to land and natural resources.

In a “certainty working group” meeting arranged by the B.C. Treaty Negotiations advisory committee, lawyer Chris Harvey warned that, post-Delgamuukw, “there is now uncertainty over whether the entire province is burdened by Aboriginal title.”

What should be sought through the treaty process, Harvey said, is “an end of Aboriginal rights and title.”

B.C. government officials, for their part, promised to accomplish this through the existing B.C. modern treaty process.

End of Aboriginal rights quote

An excerpt of a fax sent on March 27, 1998, quoting lawyer Chris Harvey stating treaty rights are needed to bring about the ‘end of Aboriginal rights and title.’

‘Treaties offer the only long-term solution’

The treaty process, created in 1992, offered a way for the provincial government to forge agreements with First Nations that had never signed historic treaties.

The process drove a hard bargain for First Nations: they could relinquish rights to close to 95 per cent of their traditional territories — giving resource companies “certainty,” or uncontested access — in exchange for financial compensation and small parcels of land.

Nations like the Wet’suwet’en, which refused to enter the B.C. treaty process, were stone-walled, Hagwilnegh told The Narwhal.

“If we sat down to talk, it didn’t go anywhere. Meanwhile, government continued to hand out licences for all sorts of things — mining, clear-cut logging and, as we see today, pipelines.”

Gitxan supporter Wet'suwet'en camp

A Gitxan supporter works to start a truck at a Wet’suwet’en re-occupation camp on Jan. 13. Photo: Amber Bracken / The Narwhal

Following Delgamuukw’s recognition of Aboriginal title, many Indigenous advocates and lawyers argued Canada should stop requiring First Nations to extinguish their rights and instead seek out shared jurisdiction that would allow Indigenous nations to develop sustainable economies.

Indeed, the FOI documents show that in the wake of the ruling, officials at the B.C. Ministry of Aboriginal Affairs expressed fear that the “credibility of the treaty process is in question.”

But rather than shift its approach, the ministry deliberated how to accelerate negotiations and “[revamp] the treaty process to create faster certainty in the areas of lands and resources.”

The FOI documents include draft speaking notes prepared for then-B.C. Minister of Aboriginal Affairs John Cashore in advance of a public forum with First Nations in late 1998.

The notes show Cashore’s prepared lines, which state, “there is no doubt that Delgamuukw also signals a need for a change in the way we do business.”

“The decision confirmed we are on the right track by negotiating instead of litigating,” the bullet-point speaking notes state. “We still believe that treaties offer the only long-term solution to gaining certainty around Aboriginal title and Aboriginal rights.”

But in private, government bureaucrats discussed several hardball tactics, including litigation, the FOI documents reveal.

The bureaucrats proposed the idea of signing “interim agreements” with First Nations that would have them “agree to support economic stability in British Columbia by refraining from direct action or litigation,” without which negotiations would not proceed.

“Make sure we take advantage of potential litigation and maybe even initiate where we feel it could help us,” Doug Caul, then-director of Aboriginal affairs at the B.C. Ministry of Forests, suggested as a possible tactic in an email exchange with colleagues from different provincial ministries.

Caul also noted the province could strike back with a court challenge: “This will be controversial, but it seems likely that Delgamuukw will spawn more litigation,” he said. “Future litigation could help [d]efine the scope of title.”

“I am not suggesting we pick a fight,” Caul wrote on Dec. 17, 1997, less than one week after the Delgamuukw decision, “but that we make sure we take advantage of potential litigation and may be (sic) even initiate where we feel it it (sic) could help us, instead of waiting and reacting.”

An excerpt from an email written by Doug Caul less than one week after the Delgamuukw decision, suggesting government “take advantage of potential litigation” to limit the scope of the ruling’s significance for title rights.

Today, Caul is the deputy minister of B.C.’s Ministry of Indigenous Relations and Reconciliation, responsible for overseeing Bill 41, B.C.’s new legislation contending with the United Nations Declaration on the Rights of Indigenous Peoples.

Escalating government tactics to ‘sweeten the deal’

In a memo to the B.C. Ministry of Aboriginal Affairs, provincial treaty negotiators suggested using federal funds intended for the healing of residential school survivors to advance treaty negotiations.

As part of the federal response to the Royal Commission on Aboriginal Peoples, the Liberal government of Jean Chretien had established the Aboriginal Healing Foundation with a $350 million dollar grant in 1998.

In order to “sweeten the deal” offered by the B.C. treaty process, B.C. negotiators suggested asking the federal government to prioritize healing money for First Nations who engaged in treaty negotiations.

sweeten the deal treaty

Internal documents from B.C. treaty negotiators recommending healing funds for residential school survivors be used to “sweeten the deal” of modern treaties.

“Were the federal government to be strategic in how this money were spent in British Columbia, then they would prioritize those First Nations with which they are having treaty negotiations as the major beneficiaries of this program,” the treaty negotiators wrote. “In addition, the money could be made available as a ‘down payment’ on an eventual treaty and given credit accordingly.”

It is unclear whether the federal government ever acted or received a request to act on this idea.

The documents also show the provincial government monitored the activities of First Nations in B.C.’s interior who were critical of the treaty process. When the Union of B.C. Indian Chiefs marched in downtown Vancouver on the first year anniversary of Delgamuukw, officials prepared media lines to highlight how they had “moved forward on a number of fronts.”

Documents reveal that upon the one-year anniversary of the Delgamuukw decision, government officials considered “monitoring blockades” a priority action. The documents also note a strategic priority to ensure the Ministry of Aboriginal Affairs update the Ministry of the Attorney General and the RCMP on “affected regions.”

The ‘surrender approach’ continues

UBC Indigenous legal scholar Gordon Christie called the FOI documents “illuminating.”

“It confirms what has been common knowledge in Indigenous circles — that the approach that emerged out of these discussions has been pursued by both provincial and federal governments for decades,” Christie said.

Mohawk policy analyst Russell Diabo, who was working with interior B.C. First Nations when the Delgamuukw decision came down, said the “continuities are clear” over the decades.

“The governments have shown their main aim remains keeping powerful business interests happy and containing the power of Aboriginal rights and title, rather than moving toward a respectful relationship.”

United Nations bodies have repeatedly criticized the Canadian government for trying to dress up old policies that have been rejected by First Nations.

The UN Committee on Economic, Social and Cultural Rights noted in 2006 it “remains concerned that the new approaches, namely the ‘modified rights model’ and the ‘non-assertion model,’ do not differ much from the extinguishment and surrender approach.”

Despite the enormous effort by the B.C. government, treaty negotiations have resulted in only eight modern treaties that “modify” or “surrender” their Aboriginal title.

The Trudeau and Horgan governments have introduced an array of new policy mechanisms and “reconciliation” agreements, but Hagwilnegh said they promote essentially the same end result and remain unacceptable to the Wet’suwet’en.

“The government never likes it when we bring up Delgamuukw,” he said. “They clam up. And on those occasions when we have been able to educate government officials, the next day, poof, we get new officials sent to us.”

When contacted by The Narwhal, instead of answering questions the Ministry of Indigenous Relations and Reconciliation referred to a press release stating it is “basing negotiations on the recognition and continuation of rights without those rights being modified, surrendered or extinguished when a treaty is signed.”

Unist'ot'en camp reconciliation is dead flag

An imitation flag that reads “reconciliation is dead” burns on a funeral pyre as a small envoy of police arrive at Unist’ot’en Healing Centre on Saturday, Feb 8. Photo: Amber Bracken / The Narwhal

“The new policy will enable flexible, innovative and collaborative approaches that improve how treaties are reached in B.C.,” the release said.

Diabo said the modern approach bears an uncomfortable resemblance to older methods. “Though the B.C. and federal government never tires of varnishing their approach to convince us that it’s brand sparkling new, their end-game remains to extract surrender of Aboriginal title to Crown sovereignty,” he told The Narwhal.

In the years since Delgamuukw, some First Nations have chosen further litigation or direct action to uphold the rights recognized in the ruling.

Diabo noted the response from the government has often been criminalization, pointing to the arrest of Wet’suwet’en land defenders in January 2019 as the latest in a line of policing actions taken against Indigenous peoples across Canada.

“The police lay down the law — or what they think the law is,” said Hagwilnegh, who has educated Wet’suwet’en youth about the meaning of the Delgamuukw court decision and worked with community members to map creeks, forests and hills across the nation’s traditional territory.

“But Delgamuukw was brought down by the Supreme Court, the highest court of Canada.”

Coastal Gaslink Pipeline RCMP Gidimt'en arrest

Police make an arrest January 2019 while enforcing the injunction filed by Coastal GasLink at the Gidimt’en checkpoint. Photo: Amber Bracken

Over the past several weeks, Hagwilnegh, acting as the police liaison for the hereditary chiefs, said he has continued to speak on the phone with RCMP deputy commissioner Strachan, whom the B.C. RCMP declined to make available for comment.

Hagwilnegh said Strachan took his advice and read up on Delgamuukw and he thinks she has listened more than the former commissioner, who oversaw the raid on Wet’suwet’en territory last year.

“But after our Elders told the world who we are and how we look after the land, as caretakers of the territory, is that the best the government can do?” Hagwilnegh asked. “It is long past time they respect their own laws.” SOURCE

 

The Indian Act: What to do with it

Created more than 150 years ago, the Indian Act has structured relations between the federal government and Indigenous people for generations. And in the eyes of many, its purpose was and still is, to assimilate, control, and even destroy the people and communities that come under its jurisdiction. In 2017, Prime Minister Justin Trudeau promised to scrap it. That hasn’t happened. The Agenda discusses what should be done about the archaic legislation. SOURCE

Gidimt’en spokesperson Sleydo’, a.k.a. Molly Wickham, accuses RCMP of acting as mercenaries for industry

Sleydo', a.k.a. Molly Wickham, is the spokesperson for the Gitimt'en Checkpoint.

Sleydo’, a.k.a. Molly Wickham, is the spokesperson for the Gitimt’en Checkpoint. CARLA LEWIS PHOTOGRAPHY/WET’SUWET’EN ACCESS POINT

An Indigenous woman has issued a scathing statement about the RCMP in the wake of an astonishing news story about a police raid on traditional Wet’suwet’en territory last winter.

Sleydo’, a.k.a. Molly Wickham, was among 14 people arrested at the Gidimt’en Checkpoint on January 7 when heavily armed Mounties arrived to enforce a B.C. Supreme Court injunction obtained by Coastal Gaslink Pipeline Ltd.

On December 20, the Guardian reported that the RCMP was prepared at that time to use lethal force, arrest children and grandparents, and apprehend the demonstrators’ children.

“We have never ceded or surrendered our lands,” Sleydo’, the Gidimt’en Checkpoint spokesperson, said. “This is an issue of rights and title with our sovereign nation, and RCMP are acting as mercenaries for industry.

“With terminology like ‘lethal overwatch’, ‘sterilize the site’, and the threat of child welfare removing our children from their homes and territory, we see the extent to which the provincial and federal governments are willing to advance the destruction of our lands and families for profit,” she continued. “The state has always removed our people from our lands to ensure control over the resources. This has never changed.

“At a time when the province has introduced the UNDRIP legislation, the RCMP are occupying our territory for the sole purpose of protecting industry and ensuring extractive projects proceed unhindered.”

UNDRIP is an acronym for the United Nations Declaration on the Rights of Indigenous Peoples.

Article 10 states: “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option to return.”

On May 30, 2018, Parliament passed Bill C-262, which calls for the laws of Canada to be in harmony with UNDRIP. The bill, which was sponsored by former NDP MP Romeo Saganash, has gone through a Senate committee but still hasn’t received Royal Assent.

On November 28, Royal Assent was granted to a provincial law, 2019 Declaration on the Rights of Indigenous People’s Act. This legislation affirms that UNDRIP applies to B.C. laws.

Coastal GasLink obtained agreements from all the elected First Nations councils along the 670-kilometre pipeline route from northeastern B.C. to the yet-to-be-built LNG Canada facility near Kitimat.

It’s part of a $40-billion private-sector project that’s received a green light from the federal and provincial governments.

But hereditary chiefs claim jurisdiction over their traditional territories and insist that elected chiefs and councils only have authority over reserves created under the Indian Act.

Coastal GasLink is a subsidiary of TC Energy, formerly known as TransCanada Pipelines. It’s pushing forward with the Keystone XL pipeline project over the objections of Indigenous people on both sides of the U.S.-Canada border.

In 1997, hereditary Wet’suwet’en and Gitxsan chiefs won a landmark ruling in the Supreme Court of Canada when all nine judges affirmed the existence of Aboriginal title post-Confederation. The Wet’suwet’en, like most B.C. First Nations, have not signed treaties with the Crown.

In 2011, a B.C. Supreme Court ruling stated: “Each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief has been given a duty to protect.”

Gidimt’en Checkpoint@Gidimten

Nothing has changed in 150 years! They are willing to kill us for our lands and steal our children. We will never give us @JustinTrudeau @jjhorgan https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land-defenders-police-documents 

Exclusive: Canada police prepared to shoot Indigenous activists, documents show

Notes from strategy session for raid on Wet’suwet’en nation’s ancestral lands show commanders argued for ‘lethal overwatch’

theguardian.com

There are five Wet’suwet’en clans. Each has its own house groups. One of those clans is the Gidimt’en, which is led by Hereditary Chief Woos. Sleydo’ is the Gidimt’en spokesperson.

“The facts released by the Guardian‘s exclusive article today to the Canadian and global public reveal the reality between Indigenous peoples protecting our lands and RCMP since contact and continuing today,” Sleydo’ said in her statement. “Here we are, nearly 2020, and we are still being threatened with violence, death, and the removal of our children for simply existing on our lands and following our laws.”

In the Witset feast hall in December 2018, the clan announced that it was creating the checkpoint to protect its territory as well as the territory of the neighbouring Gilseyhu clan. Its members have created the Unist’ot’en Village, which it describes as an “Indigenous reoccupation of traditional territory”.

According to the Guardian, RCMP commanders issued instructions that officers could “use as much violence toward the gate as you want” when taking down the blockade at the Gidimt’en Checkpoint in January.

The Gidimt’en clan called that “abhorrent”.

“We want to live free on our lands, without the constant threat of violence by CIRG (Community Industry Response Group), who are illegally occupying Gidimt’en territory,” Sleydo’ said.

Update

Environmental activists have launched a social media campaign expressing solidarity with the Wet’suwet’en people by using the hashtag #wouldyoushootmetoo.

rayne ”listen to young people” fisher-quann@raynefq

we have evidence that the canadian state was willing to shoot and kill Indigenous land defenders. someone that looks like me would never get the same treatment. it’s time to hold the RCMP and the Canadian government accountable for their racism.

View image on Twitter

p a y t o n 🌽@paytonrose14

View image on Twitter

Maya@mayaSmoore


Be part of the campaign in response to the state police violence being against the wet’suwet’en nation. The campaign would be having young people holding signs asking “would you shoot me too” and using that hashtag and tweeting at politicians

View image on Twitter

#SHIFT@TheGentYYC

I’d presume these officers’d wear masks as they wouldn’t want to be identified later for having shot protesters in cold blood. Do we know what type of masks Canadian law enforcement would be using for such a task? What’s the protocol for this? https://twitter.com/TheGentYYC/status/1208456178524549122 

#SHIFT@TheGentYYC
Replying to @BusyBurn and 2 others

Pre-meditation. “We were just following orders” stuff. #WouldYouShootMe https://www.theguardian.com/world/2019/dec/20/canada-indigenous-land-defenders-police-documents 

Video: Mohawk intellectual Russell Diabo broke down the Indian Act in 2013.SOURCE

The Indian Act: What to do with it

If you want to understand the hopes and aspirations of Indigenous nations, at present circumscribed by the Indian Act, take the time to listen to this revealing episode of The Agenda.

The Agenda with Steve Paikin:

Created more than 150 years ago, the Indian Act has structured relations between the federal government and Indigenous people for generations. And in the eyes of many, its purpose was and still is, to assimilate, control, and even destroy the people and communities that come under its jurisdiction.

In 2017, Prime Minister Justin Trudeau promised to scrap it. That hasn’t happened.

The Agenda discusses what should be done about the archaic legislation.


Watch the video

 

UNDRIP Implementation and use: It’s complicated

“We don’t have access to a court system to judge Canada at the UN, but we can embarrass Canada.” —Russ Diabo


Russell Diabo is an expert in legislation and strategies used by Canada to colonize First Nations

….A lot of grassroots Indigenous people wonder why Indigenous Nations don’t take Canada to the world court for breaches in dealings and wrong-doings against them, said Diabo. But the world court just doesn’t function as an option in that way.

Under the United Nations’ system, Canada could only be brought to the world court by another State party, he said. And there are no nations clamouring to bring Canada up on charges. Indigenous peoples themselves have little standing at the UN, because they are not member States.

Diabo also made an important distinction off the get-go. UNDRIP is a declaration not a covenant (or convention). A covenant of the UN is a legally-binding treaty, which once ratified requires the parties to adjust their domestic laws to comply with international obligations. A declaration is not legally binding. A declaration is meant to be inspirational in its intent. And, in fact, the Canadian government has described UNDRIP as aspirational. MORE