Memorandum of Understanding on Wet'suwet'en Rights and Title—An Ambitious Plan

Bennett Jones LLP

Bennett Jones LLPOn May 14, 2020, British Columbia, Canada and the Wet’suwet’en Hereditary Chiefs signed memorandum of understanding (MOU) that establishes a process for the “three equal governments” to negotiate agreements on how to implement Wet’suwet’en aboriginal title and rights.

On a single page, the MOU sets out an ambitious plan to achieve, in one year, agreements on aboriginal rights and title that the three governments have not yet achieved through many decades of treaty negotiations and litigation. Completing the agreements outlined in the MOU within a year would be unprecedented in modern treaty negotiations.

The MOU begins with two profound statements:

  1. Canada and B.C. recognize that Wet’suwet’en rights and title are held by the Wet’suwet’en houses under their system of governance.
  2. Canada and B.C. recognize Wet’suwet’en aboriginal rights and title throughout the Yintah. [traditional territory]

The MOU then commits the parties to negotiate—with the assistance of “intensive” mediation—the affirmation and implementation of Wet'suwet'en rights and title. The MOU breaks this task down into the areas of agreement to be negotiated over the next three months and the next twelve months:

  • Over the next three months, the parties will negotiate an agreement on jurisdiction over: 1) child and family wellness, 2) water, 3) Wet’suwet’en Nation reunification, 4) wildlife, 5) fish, 6) land-use planning, 7) land and resources, 8) revenue-sharing, compensation, and 9) informed decision-making.
  • Over the next 12 months, the parties will negotiate an agreement on: 1) the specifics of how Aboriginal and Crown Titles “interface”, and 2) recognizing Wet’suwet’en rights and title protection under the Constitution.

The MOU also discusses the transfer of jurisdiction and clarifies the following points:

  • “There will be no impact on existing rights and interests pertaining to land until the jurisdiction is transferred to the Wet’suwet’en.”
  • “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 (with the objective of transitioning some areas within 6 months and a schedule for the remaining areas of jurisdiction thereafter)."
  • “In some cases, jurisdiction that is transferred to the Wet’suwet’en will be exclusive and in some cases it will be shared with Canada or B.C.”

In the joint news release that accompanied the signed MOU, the signatories recognized the challenges and the work ahead.

“The MOU is the start of a negotiation process. We have a great deal of work ahead of us to determine how we will implement rights and title together, and reunification within Wet’suwet’en Nation is key to this work moving forward successfully.”

Conflict over Wet'suwet'en Governance and the MOU

The signing of the MOU with the Hereditary Chiefs has renewed points of tension in the continuing conflict within the Wet'suwet'en Territory related to governance. There are conflicts related to roles of the elected leadership and hereditary leadership, and conflicts related to whether Wet'suwet'en traditional law was followed during the negotiation of the MOU and will be followed in the negotiation of the agreements contemplated in the MOU. At the core, the conflicts relate to how the Wet’suwet’en—leaders and members—participate in the negotiations and decisions with the Crown on agreements affecting Wet’suwet’en rights and title.

The elected leaders of five Wet'suwet'en Bands issued a statement on May 1, 2020, declaring that they "have not agreed to, nor have they given their support to sign, a proposed Memorandum of Understanding (MOU) on rights and title with Canada or British Columbia."

In response, the Hereditary Chiefs have offered to meet to explore how the Hereditary Chiefs and the elected Chiefs and Councils can “work together within ancestral Wet’suwet’en homelands and communities.”

The Hereditary Chiefs and elected Chiefs and Councils met on May 7, 2020, to review the points of conflict arising from the MOU. In a follow-up letter on May 8, 2020, to the elected Chiefs and Councils, the Hereditary Chiefs explained that:

We want to confirm that, after the signing of the MOU, there is a three-month time period to negotiate an Affirmation Agreement which will formally recognize and affirm the Wet’suwet’en Houses as the title holders and the Wet’suwet’en Aboriginal rights and title throughout the Yintah. In those discussions, all Wet’suwet’en, including Wet’suwet’en members of your Bands and Band Councils will be invited to be fully engaged.

In a letter dated May 8, 2020, to the Wet’suwet’en membership, the Hereditary Chiefs expressed a similar message about inclusion:

The Dinï’ze and Tsakë’ze of the 5 clans, Gilseyhu, Laksamshu, Tsayu, Gitdumten and Laksilyu make decisions by consensus, we listen, ask questions and discuss all matters as we have done for generations.

The MOU begins those discussions. …We encourage all Wet’suwet’en from children to elders to not only participate but own our destiny.

How well the Wet’suwet’en reconcile the differing perspectives and interests within the Wet’suwet’en membership and among the elected and hereditary leaders will critical to the success of the upcoming negotiations established in the MOU.

The Wet'suwet'en Governance Structure

Two forms of governance exist within the Wet'suwet'en Territory:

  • one based on the Wet'suwet'en traditional form of government (i.e., the clan and house-group system based on anuk nu’at’en (traditional law) which pre-dates European contact with the Wet'suwet'en), and
  • one based on the federal Indian Act (the Band and elected Chief and Council established under the federal system).

Under the Wet'suwet'en Traditional governance, the Wet'suwe'ten are divided into five clans, which are further divided into 13 House groups that control individual House group territories that span the Wet'suwe'ten traditional territory. Each House group has a Hereditary Chief and sub-Chiefs, selected in accordance with Wet'suwet'en traditional laws, each with specific responsibilities for the House. The House groups and Clans interact according to social and economic relationships established under Wet'suwet'en traditional law.

The elected leadership structure is established under the Indian Act. Band councils, which are elected typically every two years, have legal authority to govern specific activities on the reserves. There are six independent Wet’suwet’en Bands, each represented by an elected Chief and council: 1) Hagwilget First Nation Government, 2) Nee Tahi Buhn Band, 3) Skin Tyee Nation, 4) Ts’ilh Kaz Koh First Nation, 5) Wet'suwet'en First Nation, and 6) Witset First Nation. All but Hagwilget First Nation Government signed the letter objecting to the MOU.

The division between the Wet'suwet’en elected and hereditary leadership, and within the Wet'suwet'en people, has played out in the widely publicized dispute over the Coastal GasLink (CGL) pipeline. CGL has support for its project among the elected Wet'suwet'en leadership for the Bands whose reserves are along the pipeline route, but CGL faces challenges among the Hereditary Chiefs within that territory. Unist’ot’en which holds itself as being associated with the Dark House group—one of 13 Wet'suwet’en Houses—has sought to stop the construction of the pipeline through protests and blockades. This dispute has focused attention on the question of who has authority over Wet'suwet'en Traditional Territory.

For the negotiation of this MOU, the federal and provincial representatives dealt directly with the Wet'suwet'en Hereditary Chiefs. The exclusion of the elected leadership and of some Wet'suwet'en, remains an unresolved issue.

Next Steps

The MOU outlines an ambitious plan and timeline. To achieve the intended agreements, the next steps must be designed carefully to identify and resolve the challenging issues related to the engagement and decision-making. The stakes are high and many interests are affected. Engaging both the Hereditary Chiefs, the elected leadership, and the Wet'suwet'en membership will be important to a successful outcome, but will be challenging.

During the upcoming negotiations outlined in the MOU, the Wet'suwet'en Hereditary Chiefs have offered to engage with the elected Chiefs and Councils and engage the Wet'suwet'en membership. While the form and nature of that engagement are mostly internal governance issues for the Wet’suwet’en to reconcile, those issues also have broader implications for how the Crown will engage with and ensure its reconciliation obligations to the Wet’suwet’en people are met. The federal and provincial governments will also have to follow a transparent process and inclusive consultation process that considers the interests of the Wet'suwet'en as well as the broader interests of those who seek to work with Wet'suwet'en on economic development within Wet'suwet'en Territory. Clarity and certainty around governance—for the Wet'suwet'en and the broader public—is essential to moving forward on a constructive path.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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