Unist'ot'en Matriarchs burning a court injunction in ceremony in February, 2020. Image: Unist'ot'en Camp/Twitter

On May 14, the Wet’suwet’en Nation hereditary chiefs signed the memorandum of understanding (MOU) with Canada and British Columbia. This MOU has been seen as an “ambitious plan” by some analysts.

In our view, this MOU is nothing remarkable if analyzed in the light of land claim agreement policies since the Calder decision of 1976. Indeed, the MOU is a continuity of Canadian and provincial policies to gain certainty over land and resources by which Indigenous signatories are made to forfeit the vast bulk of their lands and rights in exchange for cash compensation and recognition of very limited and specific rights, many of which they already had prior to colonialism.

The only difference is that, this time, hereditary chiefs are now part of the negotiation process. 

The recognition trap

The MOU starts with six propositions that recognize the Wet’suwet’en rights and title held under their system of governance and also commits to negotiate and provide the necessary resources to Wet’suwet’en to enter into those negotiations. Then, within the “agreement to be negotiated” section, Canada specifies that within a period of three months, it will be transferring jurisdiction to the Wet’suwet’en.

Standard modern treaties have the same recognition preamble that acknowledges Indigenous rights title. This preamble gives the impression that the content of the treaty will be in accordance with the recognition.

However, a certainty clause that nullifies this recognition by modifying the title always follows the preamble, and often it is inserted at the very end of the negotiation process when the most important conditions in the agreement have already been settled. This modification is actually done through a subtle process that consists in a cession of the Indigenous title to the Crown, which is then transformed into vastly inferior fee simple rights.

This enables the Crown to transfer the ceded land title to provincial jurisdiction, in this case, British Columbia. Indigenous peoples have increasingly denounced the terms “cession” and “extinguishment” that have been part of colonial processes systematically invalidating their ancestral legal orders and violating the international law principles of peoples’ self-determination.

Canada disguises these outdated terminologies through a “modification” semantic, which has the same invalidating and extinguishment effects. Here is an example of the standard modification mandates included in the certainty clauses of most modern treaties: 

“Despite the common law, as a result of this agreement and the settlement legislation, the aboriginal rights, including the aboriginal title, of (the First Nation), as they existed anywhere in Canada before the effective date, including their attributes and geographic extent, are modified, and continue as modified, as set out in this agreement.”

For greater certainty, the aboriginal title of the First Nation anywhere that it existed in Canada before the effective date, including its attributes and geographic extent, is modified and continues as modified as the estates in fee simple to those areas identified in this agreement as (the First Nation) Lands. 

More precisely, within the framework of Canadian colonial laws, the ancestral title of sovereignty is ceded and extinguished and therefore, Canada and the provinces legally consolidate their sovereignty over “land and resources.”

Indeed, what is given back to the Indigenous peoples is a delegated power from Canada to manage a reduced parcel of land that is no longer theirs, in substitution of inherent ancestral sovereignty. 

This explains why the MOU at article 2 b) refers to a transfer of jurisdiction to the Wet’suwet’en from Canada. The term “transfer” is a clear demonstration that the sui generis and pre-colonial title will be undergoing a modification through the negotiation process that will provide Canada and British Columbia with full jurisdiction over Wet’suwet’en lands and resources as specified under article 1 of the agreement “To be Negotiated” section of the MOU.

Overall, this MOU and the agreement that should be negotiated is essential to Canada to consolidate its powers to decide exclusively on the purposes for which the land will be used and so, opening a clear legal path to moving forward with the Coastal GasLink project. Far from being a measure to recognize the human rights of the Wet’suwet’en, the MOU is a means to disempower them and adulterate their lands. 

Three Months Timeframe

The ambitious aspect of the MOU lies perhaps in the timeframe provided to reconcile both hereditary sovereignty and the Indian Act structure of governance.

Canada has imposed, in accordance with its constitutional regime of article 91(24) of the Constitutional Act, the Indian Act over First peoples’ governance since 1876 and now establishes a three months calendar to resolve 150 years of conflicts and cultural assimilation that results from the imposition of the act.

Many Indigenous communities, such as the Innu, have been negotiating for over four decades for the same issues addressed in this MOU and have not come to an agreement. This very short timeframe shows that governments are running out of steam in the face of Canadian land confiscation policies. 

This haste is also the results of the tremors suffered during the last months following the countrywide resistance and blocking of the railway tracks in opposition to the GasLink project. Indeed, the remarkable speed with which Canada is acting is clearly linked to pushing through as many dangerous and irresponsible extractive projects on ancestral territories as possible.

Indigenous legal orders and their scope

The crisis over the pipeline on Wet’suwet’en territories and the support of Canadian civil society for hereditary chiefs testifies to the obsolescence of extractivism and environmental destruction.

The emergence of hereditary jurisdictions shows that the limit has been reached and that it is now time for Canada and the provinces to listen carefully to the Indigenous accounts of the history of North America. These versions emphasise that ancestral responsibility and obligations towards the land has never been extinguished and cannot be subject to extinguishement by Canadian policies because it is inherent to Indigenous peoples cultures and stories, emerging from thousands of years of interactions with the Earth.

This sovereignty, and the inalienability of the bonds it supposes, also brings clear solutions to combat the destruction of our planet and all living beings it supports. In this sense, it may be time to reflect on extractive industry through this framework rather than simply imposing an outdated and dishonest land claim process, knowing that as humans the way we behave towards the Earth mirrors the way we conceive our humanity and honor future generations.

Pierrot Ross-Tremblay is the Canada Research Chair of the Institute of Indigenous Research and Studies at the University of Ottawa. Nawel Hamidi is a lawyer, PhD candidate (Essex) and lecturer at St-Paul University. Colin Samson is a professor in the departement of sociology at the University of Essex.

Image: Unist’ot’en Camp/Twitter