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For the Wet'suwet'en nation, formal land rights may be on the horizon

If approved, a draft memorandum of understanding would pave the way, but there's a catch—it would do nothing to stop the contentious pipeline construction already happening

The old feast hall, with its high ceilings and large wood panels featuring traditional Indigenous drawings in bold red and black strokes—a beaver, a frog, a bear—was often empty and silent from disuse.

But on a sunny, brisk Friday in early March, at the edge of the Witset First Nation in northern British Columbia, the room, once a regular meeting place for a population that has since outgrown its capacity, was buzzing again.

Outside, pickup trucks were parked bumper-to-bumper on the otherwise quiet, narrow road, leading to Witset’s low bungalows, its RV park, its single gas station. Inside, fluorescent light rods and rays of sunshine from small, high windows lit a room of 70 people crammed into black chairs at folding tables. Almost a dozen more joined via video chat.

Those interviewed by Maclean’s after the closed Gitdumden clan meeting agreed they were transfixed by the forceful, echoing voice of the man at the front of the hall, but wouldn’t speak to specifics. What stuck with them was his tone. Speaking vigorously in Witsuwit’en, the traditional language of the Wet’suwet’en people, was Chief Woos—Frank Alec, by another name. He rose to national prominence during the winter as one of the most outspoken of the hereditary chiefs opposed to the construction of the Coastal GasLink pipeline, a natural gas project that will cross 670 km of northern B.C.—including 190 km of traditional Wet’suwet’en territory. The chiefs’ opposition inspired solidarity protests and blockades across the country that shut down entire rail systems.

“The first time I ever heard him speak like that, I was scared, because I thought he was really mad,” says Molly Wickham, a Gitdumden clan member and vocal pipeline opponent. “He explained after, ‘I’m not mad. This is how I was taught to talk about the land.’ ”

That day, there was much to say about the land.

Woos and other hereditary chiefs had just spent several long days hammering out a draft document with federal and B.C. ministers charged with Indigenous relations. It was a memorandum of understanding (MOU) that, if approved by the Wet’suwet’en membership, would pave the way for formal land rights to be negotiated—but there was a catch. It would do nothing to stop the contentious pipeline construction already under way, nor would it spell out how to resolve jurisdictional issues within the nation.

This community of more than 4,000 members spread across 22,000 sq. km in northern B.C.—made up of scattered reserve communities nestled between snow-capped mountains, curving salmon rivers and boundless spruce trees—had become a battleground for pro-pipeliners and environmentalists, and a flashpoint for a federal government struggling with a dual mandate of climate change mitigation and resource development. More, it was a symbol for the progress—or lack thereof—of Canada’s reconciliation project writ large. For weeks, it remained squarely at the centre of national attention.

But before the Wet’suwet’en nation could complete internal consultations on whether or not to ratify the document, that attention swung over to fighting the coronavirus pandemic—a public health catastrophe that, by all accounts, will hit under-resourced northern and Indigenous communities particularly hard.

READ: Why Canada needs an independent Indigenous human rights commission

If an agreement recognizing the jurisdiction of hereditary chiefs over these lands is eventually reached, it would affirm a recognition the Wet’suwet’en have long sought, as well as resolve a question left unanswered 23 years after the Supreme Court laid it at the feet of government. For the Wet’suwet’en—whose communities say they are torn between determination to protect their lands and the opportunity the pipeline offers; still incredulous that their cause has seized the attention of the entire country—the upper hand in the battle for self-determination appears to be theirs.

Will this agreement provide a living example of Indigenous title as conceived by Indigenous peoples—and validated by the courts? Will it mean the Wet’suwet’en can become the nation they yearn to be?

Plain, bright-red dresses are suspended in the trees, hung on thin branches, engulfed by the faint smell of campfire smoke.

You see them at about the 27-km mark of the Morice West Forest Service Road. Each hangs in sombre tribute to a woman from the community who was murdered or went missing near or along the main artery that runs through Wet’suwet’en territory—Highway 16, colloquially known as the Highway of Tears—from which the access road snakes down near Houston, B.C. The garments also mark the entrance to the first of three checkpoints along the road, where Wet’suwet’en members, and visitors from as far as California, camp to thwart the progress of the pipeline workers who access it. “No RCMP on Wet’suwet’en land. The world is watching,” reads a sign.

The second checkpoint is at Kilometre 44. More red dresses are hung on the way in. A sign on a fence reads: “No pipeline, no compromise.” On a dark-green dilapidated van, “RCMP Pigs Out” and “shut down kkkanada” are spray-painted in white.

The camp is about a minute’s walk to the Morice River, habitat to a large salmon population that has fed the Wet’suwet’en for generations. On the path to the river, a wet piece of a tree’s inner bark is wrapped around a young spruce, a traditional marker of territory placed by Chief Woos.

On a weekend in early March, seven people are camping at Kilometre 27 and a few more at the Kilometre 44 camp, where Woos has a cabin, and a school bus with anti-pipeline graffiti doubles as a lookout spot. Local organizers vet campers’ online applications before letting them stay, and the numbers vary from day to day.

Molly Wickham, who attended the meeting at the old feast hall, helped build the checkpoints in 2018 with the support of a majority of hereditary chiefs, specifically to resist Coastal GasLink. For Wickham, pipeline construction is as much a violation of Indigenous dignity as residential schools or the ’60s Scoop—during which her own Wet’suwet’en mother was taken from her parents and placed with a white family in Burns Lake.

Freda Huson is another prominent actor in the pipeline debate. She built the first checkpoint on the service road, the Unist’ot’en camp, at Kilometre 66 in 2010.

Huson said her father taught her that occupying the land means owning it. “Every time we tell industry ‘no,’ they would try to sneak in anyways,” she tells Maclean’s. “So we decided we need to occupy the land.”

Two years later, the Coastal GasLink pipeline was announced, a project that would feed natural gas from near Dawson Creek to a $40-billion export terminal in Kitimat—on the territory of the Haisla Nation, a smaller community that firmly supports natural gas projects and, according to a statement on its website, considers Wet’suwet’en pipeline opponents “a select few.”

Over several years, Coastal GasLink secured agreements with 20 First Nations along the route, including five elected band councils in the Wet’suwet’en territory. In 2018, Prime Minister Justin Trudeau and B.C. Premier John Horgan announced the project had their governments’ blessings.

But the route passes through unceded traditional territory not covered by the boundaries of reserves run by elected chiefs, and hereditary chiefs claim they were never consulted.

Wet'suwet'en hereditary Chief Woos (Chris Helgren/Reuters)

Wet’suwet’en hereditary Chief Woos (Chris Helgren/Reuters)

The Wet’suwet’en Nation is made up of five clans—Gitdumden (Wolf and Bear Clan), Laksamshu (Fireweed and Owl Clan), Tsayu (Beaver Clan), Laksilyu (Small Frog Clan), and Gil_seyhu (Big Frog Clan). There are 13 house groups under those clans, each with a hereditary head chief position, although four are vacant at the moment. Of nine active hereditary chiefs, eight are opposed to the pipeline and signed an eviction notice to Coastal GasLink in early January that cited their own trespassing laws.

When pre-construction of the pipeline began in late 2018, workers were impeded by blockades and the B.C. Supreme Court granted the company an interim injunction. While Huson and others fought the injunction on the basis of Wet’suwet’en traditional law, under which they said hereditary chiefs can deny entry to anyone who seeks access to their territory without permission, the B.C. Supreme Court upheld the injunction in December 2019.

Then came the eviction notice to Coastal GasLink. Trees were felled across the service road, making it impassable. The RCMP stood back to facilitate talks between chiefs and the province in late January, but the talks broke down.

READ: The blockades no one talks about devastate Indigenous economies

The RCMP began enforcing the injunction once again in February, taking down barricades and physically dragging people away after they refused to move. They arrested 28 people, including Huson, who says she was “forcibly” removed from her home at the Unist’ot’en camp. “We’ve occupied [the land] for 10 years but it appears that it doesn’t work for us,” says Huson. She and others were due to appear in court in April, although courts in B.C. are now on an indefinite COVID-19 hiatus.

News of the arrests went far beyond Wet’suwet’en country, triggering a chain reaction of sympathetic blockades and protests across Canada, and support around the world. Barricades, including one set up by the Tyendinaga Mohawk Nation east of Belleville, Ont., halted rail traffic on the busy Toronto-Montreal rail corridor and in other parts of the country. With tempers flaring and livelihoods under threat as rail blockades prevented the movement of goods, counter-protesters came into the mix, with some even dismantling a barricade across a CN line in Edmonton even as new ones were being erected elsewhere. Crowds demonstrated at Vancouver and Montreal ports. The hashtags: #wetsuwetensolidarity and #shutdowncanada.

Although complicated jurisdictional issues lay at the heart of the issue for many Wet’suwet’en members, the conflict quickly became a proxy for wider causes: the fight against climate change; the prospect of getting pipelines built in Canada; and the perceived failure of the reconciliation project.“RECONCILIATION IS DEAD” declared many a protest poster, and the word “reconciliation,” written on boards at the Unist’ot’en blockade, was literally torn apart by police. RCMP took down some of the red dresses too, although they have since gone back up.

At the end of February, with political and economic pressure mounting, the RCMP stood down, removing its checkpoint near the camps. Federal and provincial governments came together with hereditary chiefs and Wet’suwet’en matriarchs to hammer out the memorandum of understanding that Chief Woos would lay out to his clan at the feast hall in Witset.

Its announcement stilled the crisis. Major rail blockades came down, thousands of rail workers who had been temporarily laid off were rehired, and the country turned its focus toward the looming catastrophe of COVID-19.

***

“I’m pro-pipeline,” said Dan George. “I believe in not saying no, because what’s the alternative?”

George, the elected chief of Ts’il Kaz Koh (Burns Lake) First Nation for the past six years and a member of the Wet’suwet’en Beaver Clan, signed a benefits agreement with Coastal GasLink in 2015. It promised $830,000 in revenue as project milestones were completed, and a share of $10 million in “ongoing benefits” once the pipeline was operational. A member of the First Nations LNG Alliance, George says he’s tired of seeing developments near his reserve, 220 km west of Prince George, that don’t benefit its 140 residents.

He says the $6.6-billion pipeline has already created 1,200 local jobs. About 300 of those went to First Nations people, according to Suzanne Wilton, a spokesperson for TC Energy (formerly TransCanada), the parent company of Coastal GasLink; and $825 million in contracts have been awarded to “Indigenous and locally owned businesses along the project route.” George, who worked as a logger for 13 years, says the downturn of the forestry industry hit his community hard. “We need something else to revitalize our economies in the North.”

Only one hereditary Wet’suwet’en leader, Chief Samooh (Herb Naziel), supports the pipeline. He is a heavy-equipment operator with a company that holds a contract with Coastal GasLink, and had, until March, stayed out of the spotlight upon the request of other chiefs. “I don’t want to stir up the nest,” he told the Globe and Mail, “but it’s not right for people to stop business.”

READ: The Wet’suwet’en are more united than pipeline backers want you to think

Wilton said Coastal GasLink has had an extensive history of consultation with Indigenous leaders. “We have the utmost respect for the First Nations governance systems in British Columbia, whether that be elected or hereditary. It is out of this respect that we never made assumptions about who has decision-making authority. Instead, we strived to engage with all the Indigenous groups along the pipeline route—regardless of history or background—to ensure they’ve had opportunities to be part of our project planning process,” she said in an email.

The pipeline debate in Wet’suwet’en Nation has brought outside attention to sometimes-messy internal disputes over who should be in charge, and of what. George says these will need to be resolved if title negotiations are to yield a working model of government.

The hereditary chiefs are chosen by the community based on lineage and demonstrated leadership skills. “When you’re born, you get watched your whole life,” says Daren George, who works at the Witset First Nation band office. Sub-chiefs, or wing chiefs, support house chiefs in facilitating consensus decision-making at clan meetings. Decisions are ratified at smoke feasts—ceremonial meetings that include all members of the community.

This traditional system, which has a complex set of its own laws, co-exists with the system of elected band chiefs, whose power is born of the Indian Act, circa 1876, and whose funding comes largely from the federal government.

The feast hall in Witset (Amber Bracken)

The feast hall in Witset (Amber Bracken)

While community members who spoke to Maclean’s insist hereditary chiefs have the most authority over the nation’s affairs, elected chiefs are chosen by people with federally administered “Indian status” at votes every two or four years. They are responsible for local governance of the reserve they represent. Six such reserves are on Wet’suwet’en traditional territory.

Adam Gagnon, a Laksilyu wing chief, says elected chiefs do not carry as much authority as house chiefs. “They should be called mayors, or administrators,” Gagnon says. “They’re only in for two years at a time, and then they’re nobodies again.”

“The Wet’suwet’en have probably one of the strongest hereditary systems in North America,” says Jacob Beaton, a First Nations business consultant who worked with Witset’s elected council during negotiations with Coastal GasLink. Beaton says the company made a grave error by not obtaining the permission of hereditary chiefs. “It’s a functioning, healthy system,” he says. “You can’t just ignore it.”

Wilton, the TC Energy spokesperson, says Coastal GasLink did consult with hereditary chiefs—she says the company has documented about 120 in-person meetings with Wet’suwet’en hereditary chiefs, plus some 1,300 phone calls and emails over the past six years. Some declined to meet, Wilton says. “We have continued and remain willing to meet and discuss their concerns and, wherever possible, address them.”

Although Beaton and others affirm that all Wet’suwet’en are aware of their hereditary affiliations, not all are satisfied with the system’s performance. Some are skeptical that some of the hereditary chiefs came about their titles legitimately, and there is disagreement in the community over the prerequisites for the job. However, it is difficult to assess how widespread that skepticism is because many in the community are unwilling to speak publicly, particularly since internal consultations about the memorandum of understanding began. Maclean’s made repeated, unsuccessful efforts to speak to Woos.

Rita George, a hereditary sub-chief, was quoted in February saying the nation’s matriarchs were not being heard. An influx of outside protesters had dampened debate within the community, she added, and outspoken hereditary chiefs had disrespected ancient feast-house traditions.

Theresa Tait-Day, who supports the Coastal GasLink project and formed the Wet’suwet’en Matrilineal Coalition with two others, Gloria George and Darlene Glaim, made similar allegations at a parliamentary committee meeting in March. “Our voices are not being heard. Many of the male hereditary chiefs are acting out internalized historical oppression. We face patriarchal domination.”

The Matrilineal Coalition received funding from Coastal GasLink and the B.C. government, arousing suspicion about its motives. All three women still use their chiefly titles, claiming these were unjustly stripped from them last year because of their opinions about the pipeline.

Daren George says the stripping of matriarchs’ titles, and its fallout, “caused a lot of grief” for some. “I remember hearing at my dinner table a lot of talk about how it wasn’t right.”

Now, he is unhappy that some house chiefs are presuming to speak on the entire nation’s behalf. “We can speak for ourselves,” George says. He adds that because hereditary governance has become more westernized over time, and band councils rely so heavily on federal money, self-government—although he supports it—could be difficult to manage. “We’re not in a space where we can handle that.”

Still, most Wet’suwet’en interviewed by Maclean’s say they want house chiefs to be in charge of land-use decisions. Even Dan George, the Burns Lake elected chief, believes in the hereditary system—but only “when done right.”

He says he won’t be able to support a self-government agreement until two conditions are met. First, that there be genuine consultation even with people who are typically “scared” to go to clan meetings. “Every voice needs to be heard, not just a few,” he says, and not just from the nine houses with active spokespersons. Second, it needs to be abundantly clear what role elected chiefs will play.

Wickham at the checkpoint near Houston, B.C., in December 2018 (Amber Bracken)

Wickham at the checkpoint near Houston, B.C., in December 2018 (Amber Bracken)

Beaton says elected and hereditary systems can each be flawed in their own ways. It can be difficult to engage everyone in decision-making, be it electing band councils or participating in smoke feasts, especially in a nation as large as the Wet’suwet’en.

The decisions by hereditary chiefs to oppose Coastal GasLink, to allow the checkpoints on the access road in 2018 and to serve the company an eviction notice early this year all received community approval at feasts. “Nobody got up and said, ‘No, we don’t support this, this is wrong, you can’t do this,’ ” recalls Molly Wickham.

In the early stages of the project, industry-sponsored meetings would be held at some of the same venues. And at those meetings, Beaton says, a few dozen attendees would emerge 100 per cent in favour of the pipeline.

This sense of two solitudes within the nation’s population leads to worries about how to manage title in practical terms. If there is no consensus on the pipeline, and no process capable of producing one any time soon, how possible will it be to get broad buy-in for a permanent model of self-government?

In the landmark Delgamuukw v. British Columbia case, Wet’suwet’en and neighbouring Gitxsan hereditary chiefs fought the province for title over 58,000 sq. km of traditional lands all the way to the Supreme Court of Canada. The high court’s ruling in 1997 stopped short of granting title due to a defect in the pleadings—it left that up to Victoria and Ottawa to negotiate with the Wet’suwet’en people, which never happened. But the decision acknowledged title as inalienable, ancestral and granting “the right to exclusive use and occupation of the land.” It also affirmed that, constitutionally, rights “may be infringed by the federal and provincial governments,” including for economic reasons like resource development and infrastructure—though with major hurdles.

In 2014, the Supreme Court recognized Aboriginal title for the first time in Tsilhqot’in Nation v. British Columbia, and justices set legal requirements, including “sufficient” and historic occupation of the land, for recognizing title in the future. Although few nations in B.C. are governed by treaty, governments are used to the concept of treaty negotiations, which focus more on governance than land ownership. (Wet’suwet’en hereditary chiefs have abandoned the B.C. treaty process.) Provincial and federal officials are less used to the concept of title. “It’s still a struggle for governments to figure out how to deal with us,” Chief Joe Alphonse, the Tsilhqot’in national government chair, told Canadian Press in early March.

Those who spoke to Maclean’s about the memorandum of understanding are closely guarding its specifics, because all three parties agreed to confidentiality. Hereditary chiefs have shied away from media interviews since its announcement.

It seems possible the deal could guide treaty negotiations by the B.C. and federal governments with other First Nations, says lawyer Peter Grant, who was counsel for the Gitxsan and Wet’suwet’en in the Delgamuukw case. (Grant was in the room for the recent tripartite negotiations that led to the MOU and declined to share details, stressing that he was speaking hypothetically.)

But there is no one-size-fits-all solution. Under the United Nations Declaration on the Rights of Indigenous Peoples—which B.C. codified into law last November, making it the first Canadian jurisdiction to do so—state governments must recognize Indigenous governments as defined by the nations themselves. The Wet’suwet’en and Gitxsan have chosen to be recognized by their hereditary systems, Grant notes, but that’s not a prescription for others.

Some Indigenous governments are already equal partners on development decisions. Grant points to the James Bay Cree, whose land rights were recognized in a 1975 agreement with Quebec. “The Quebec and Canada governments willingly accept that things aren’t going to happen there without the James Bay Cree’s full engagement and involvement. And the world has not come to an end,” he says.

Already, governments are pulling back when Indigenous communities resist activities on their lands, says Grant, “and that takes us back to reconciliation, which starts with respect.”

At the announcement of the draft MOU, Grant saw federal Crown-Indigenous Relations Minister Carolyn Bennett and provincial Indigenous Relations and Reconciliation Minister Scott Fraser professing respect. “If they can be kept to their word on that—not them as individuals, but their governments—then it gives me hope,” he says.

In separate responses to Maclean’s, the offices of Bennett and Fraser restated their commitment to keep going after the COVID-19 crisis eases, should the Wet’suwet’en ratify the agreement. “We are ready to return to the territory to complete the process as soon as it makes sense, and is safe to do so,” Fraser wrote in an email.

Before the delays, the nation appeared to be inching toward ratification. One smaller clan has approved it: Adam Gagnon attended a meeting of the Laksilyu clan, within which he is a wing chief, the same week as the Gitdumden meeting. He says the 20 or so attendees agreed to the memorandum on the spot.

If and when all clans ratify the document by unanimous consent at a smoke feast, it will trigger an initial three months of negotiation focused on jurisdiction, decision-making processes and land-use planning, according to people familiar with the document, followed by another six months to decide on implementation.

A forward-looking agreement that opens the way to title and self-governance is, without question, pivotal. But its success could be hampered by the one glaring—and to some, inexplicable—omission in the document: any mention of the Coastal GasLink pipeline. The issue that caused clashes with police and inspired rail blockades across Canada—that necessitated emergency negotiations with the government in the first place—remains unresolved.

Fraser said in an email that everyone at the table recognized that differences over the pipeline remain. But the province, he said, “has been clear that the Coastal GasLink project is permitted and approved to proceed. Construction is ongoing.” It is important that Coastal GasLink and the Wet’suwet’en find a way to work together, Fraser added, and “real progress on rights and title matters will help resolve these types of challenging circumstances.”

Some pipeline opponents see its construction as a foregone conclusion and speak about it with an air of defeat. Others are pragmatic. Asked how he feels about letting the project go ahead in order to establish land rights and title, Gagnon says: “I’m not comfortable with it at all. But it’s something that all of the chiefs have to decide on, that we have to decide whether we want, in order to say yes or no to the deal.”

Molly Wickham doesn’t see it that way. “We’re not willing to stand down. It’s not an either-or, it’s an and,” she says. “We’re going to engage in those [title] discussions and we’re going to uphold the eviction to Coastal GasLink.”

It’s a position many in the community share, but one she admits is controversial even within her own family. The head of the First Nations LNG Alliance, Karen Ogen-Toews, is Wickham’s cousin. Rita George, who has been vocal about her opposition to the blockades, is her great-aunt. Despite their differences, Wickham says, the matriarch still visits the Unist’ot’en camp, bringing gifts of food.

As any big family or small community knows, dislikes and distrusts and doubts build up over the years. In a place like Wet’suwet’en territory, where community members are in many cases relatives, reaching consensus can be challenging and even painful.

Red dresses, representing murdered and missing Indigenous women (Amber Bracken)

Red dresses, representing murdered and missing Indigenous women (Amber Bracken)

Those layers of disagreements effectively derailed the decision-making process at Chief Woos’ first, well-attended Gitdumden meeting. But another feature of Wet’suwet’en history and culture—perseverance—pulled the process back on track. Instead of giving up, the clan held a second, four-hour meeting a few days later. Attendees stayed on topic. A third meeting was scheduled, but postponed due to the pandemic.

Even amid a crisis that has ground Canada to a halt, the Wet’suwet’en—armed with historic imperatives and no shortage of lawyers—intend to press on.

So does Huson, who, after a decade of making her home on a forest service road, is not about to stand down. She is playing a long game, in which these fraught deliberations are, in her words, nothing but a “smokescreen.” And a long game, she knows, is a form of leverage. If not for organized opposition to the Coastal GasLink pipeline and the groundswell of support hereditary leaders received from far afield, there would be no memorandum of understanding. There would be no concession at all. To her, the motives of those apparent allies don’t matter.

“Right now, I feel like we’re winning. Look all around you,” she says defiantly. The red dresses still hang. The graffitied green van is still parked. The wet bark is still wrapped around the spruce. Her own cabin is still standing. “Why do you think they’re negotiating? They wouldn’t come to the table if they didn’t feel like they were losing.”


This article appears in print in the May 2020 issue of Maclean’s magazine with the headline, “What the Wet’suwet’en want.” Subscribe to the monthly print magazine here.