Can secret deal end pipeline protests?
Opposition to pipeline remains entrenched
Carolyn Bennett returned from her weekend meetings with Wet’suwet’en hereditary chiefs with a piece of paper in her hand — not so much an agreement, as an “arrangement.”
We don’t know what is written on the paper but the federal and B.C. governments fervently hope it is enough to persuade the chiefs to call off nationwide blockades that are asphyxiating the economy.
The arrangement will be reviewed by a Wet’suwet’en community deeply divided by the Coastal Gaslink pipeline being built on traditional land.
Let’s hope desperation to strike a deal didn’t cloud the Crown-indigenous Relations minister’s judgment.
The details are not so much sparse as non-existent. But a joint statement issued by Bennett, B.C. minister Scott Fraser and the chiefs hinted at the form a deal might take.
It said two “separate” topics were discussed – recognition of Wet’suwet’en rights and title, and the issues arising from the pipeline. It seems they were kept separate, even if they are clearly linked, because the chiefs would not budge on the latter.
Construction on the pipeline has restarted and Fraser was clear that as far as he is concerned, it has legal clearance.
But the chiefs remain opposed and Bennett recognized in an interview that “there is still a difference of opinion”.
As such, hopes about an end to the wave of protests may have been raised prematurely.
If the pipeline’s future remains opaque, there was progress on land ownership in the form of a “draft arrangement”. If ratified, it will “breathe life” into the historic Delgamuukw decision, the statement said. This was a 1997 Supreme Court decision involving the Wet’suwet’en and Gitxsan peoples, who claimed Indigenous title to around 58,000 square kilometres of northwest British Columbia. A 1991 B.C. Supreme Court ruling said any rights First Nations may have had over the land were legally extinguished when B.C. joined Canada. The Delgamuukw decision overturned that judgment, saying treaty rights could not be extinguished, that oral testimony was legitimate and title rights included the extraction of resources.
Crucially, though, it did not grant the Wet’suwet’en simple ownership. The court encouraged the Wet’suwet’en to negotiate with the Crown. That was more than 22 years ago.
It looks very much like Ottawa has been shaken from its lassitude by the protests, which is poor reflection on this government and its immediate predecessors. It suggests that Indigenous Canadians only get noticed by their federal government when they take to the barricades.
Bennett said that the proposed arrangement is aimed at preventing “this kind of difficulty” happening again in the future.
Hammering the ball back into the Wet’suwet’en court, so that they are forced to deal with their internal governance issues is long overdue.
The hereditary chiefs are blocking the pipeline because they claim they were not consulted. The elected leadership of five of the six Indigenous bands in Wet’suwet’en support the project on economic development grounds. The deal reached on Sunday appears to grant the hereditary chiefs the authority to be at the table in future, while the ratification process gives the community the opportunity to decide who speaks on its behalf.
Providing a path to self-government is exactly what Ottawa should be doing.
Take a look at the annual report of any self-governing First Nation, such as B.C.’S Sechelt Nation, to see the bondage of dependency melt away. The Sechelt still receive federal funding for health and education but raise more than half their revenues from leases, fees, royalties, property taxes and contracts.
Yet the nagging worry is that Bennett has signed up to a deal, any deal, to end the blockades. You have to hand it to Frank J. Alec, aka Chief Woos, proprietor of Frank J. Alec Consulting, specialist in dispute resolution, and sometimes hereditary chief. He has toyed with federal and provincial ministers, letting them nibble the bait before reeling them in. They have now signed up for an “arrangement” on rights and title, while he has given away nothing on the pipeline.
The suspicion is that this is a lopsided deal. The glee with which it was greeted by the hereditary chiefs certainly suggests they got what they wanted. “This is a momentous moment,” said Debbie Pierre, executive director of the Office of the Wet’suwet’en.
The Wet’suwet’en remain one of 65 First Nations currently ensnared in the B.C. Treaty Process, negotiating a self-government agreement. Does the prospective agreement with Bennett to “implement title on an expedited basis” mean the Wet’suwet’en jump to the head of the line?
The treaty process suggests the Wet’suwet’en have overlapping territory claims with four other First Nations. Does the arrangement signed at the weekend address territorial boundaries?
Bennett said the Wet’suwet’en’s situation is “unique” because the Supreme Court had already established the nation’s legal title. “It’s just a matter of implementing that,” she said, which sounds convenient.
The Trudeau government has not proven itself to be very strategic in its dealings with Crown-indigenous issues. In summer 2015, the then leader of the third party promised to implement all 94 recommendations made by the Truth and Reconciliation Commission, sight unseen.
His government has promised to introduce legislation that will “operationalize” the United Nations Declaration on the Rights of Indigenous Peoples by the end of this year, without having any idea about the cost of introducing Indigenous languages into schools, to take just one example.
“That would cost Canada billions of dollars, so unless the government is prepared to find that money, it shouldn’t raise expectations,” said Ken Coates, Canada research chair at the Johnson-shoyama Graduate School of Public Policy.
The Crown-wet’suwet’en arrangement would seem to be similarly quixotic. Bennett claims it will be a “durable solution” going forward.
But opposition to Coastal Gaslink remains entrenched and across the country, the barricades remain in place.