Wet’suwet’en Land and Water Protectors Step Up Efforts

The protests against the Coastal Gaslink Pipeline are continuing across Canada as the RCMP have reported that they have ended most of their operations on the traditional and unceded lands of the Wet’suwet’en people.

While there are many people across Canada who are impacted, or will likely be impacted by road closures, or the rail blockades, perhaps it is worth considering the impact on the lives of people in the Wet’suwet’en territory and on the many Indigenous reserves across this country deal with every day.

From: <Marc.Miller.P9@parl.gc.ca>
Date: February 13, 2020 at 12:15:08 AM EST
To: <kanenhariyo@gmail.com>
Cc: <rdonm@mbq-tmt.org>, <orcroseanne@afn.ca>

Subject: Silver Chain Covenant

Shé:kon Kanenhariyo, I apologize for the informality of this communication as I am currently traveling. I am writing to confirm what I agreed orally a short while ago: that pursuant to the principles of the Silver Chain Covenant, I hereby agree to Polish the Chain with you and the Kanien’kehá:ka of Tyendinaga at a location of your choosing this coming Saturday. My request that I ask you kindly to consider is to discontinue the protest and barricade of the train tracks as soon as practicable. As you well know, this is a highly volatile situation and the safety of all involved is of utmost importance to me. I hope you will agree to this request and that we can meet in a the spirit of peace and cooperation that should guide our relationship. Please confirm receipt of this email at your earliest convenience and I will instruct my cabinet staff to prepare the meeting on Saturday.

I wish you all the best and look forward to meeting.

Aiáwens tsi akwé:kon skén:nen ní:se.

Marc Miller
Minister of Indigenous Services

The federal Minister of Indigenous Services appears willing to meet and talk. On Saturday, that conversation began.

Unceded Territory

What is not fully explained or understood by most Canadians is the traditional lands of the Wet’suwet’en people, the 22,000 square kilometers of land is it was never given up by the people. They have no treaty with Canada, nor have they given up their title to the land.

Luke Hunter from Nishnawbe Aski Nation Legal tells NetNewsLedger, “Unceded territory or unceded lands means that aboriginal title still exists. In order words, the Aboriginal land title has not been extinguished either through an agreement (a treaty) or conquest. In Canada, Aboriginal lands was acquired through a treaty-making process, established under the Royal proclamation of 1763 by the British crown. There were some parts of Canada that treaties weren’t made, mainly on Quebec, BC and NWT (far north). Today, modern treaties are known as Comprehensive Land Claims and have been negotiated by various Aboriginal groups.

“The Treaties does not explicitly define “sharing” of lands but there is strong evidence (oral history and elders understanding) that lands were be shared to benefit both parties. The Canadian jurisprudence has provided some clarification to treaty interpretation. For example, Treaties are a sui generis (unique) form of agreement in Canadian law that are to be interpreted according to a special set of principles (Sioui, SCC); Simon v The Queen, 1985 (SCC); R v Marshall, 1999 (SCC) [Marshall No. 1]). These principles reflect the circumstances of the making of the treaties, their recognition in section 35, and the special relationship that exists between the parties. Furthermore, historic treaties are to be interpreted in a purposive fashion. A purposive interpretation entails identifying and giving effect to the common intention of the parties at the time a treaty was made (Marshall No. 1, (SCC); Sioui, SCC). In determining the common intention of the parties the courts will choose, from among the various possible interpretations of common intention, that which best reconciles the interests of the parties when the treaty was made (Sioui, SCC). In other words, the surrender language in treaties and the sharing concept still needs to be reconciled by both treaty parties. If this is not reconciled, we will continue the conflicts that we have today. The fundamental objective of the modern law of treaty and Aboriginal rights is the reconciliation of Indigenous peoples and non-Indigenous peoples (Mikisew, SCC).

“Both Treaties in NAN territory (9 & 5) contain the “taking up clause” where the crown can take up treaty lands for development (such as mining, lumbering, etc.). The “taking up” of lands is not automatic. The Crown has to consult aboriginal interests and accommodate them if the development is going to impact their Treaty and aboriginal rights. This is because under historic treaties, First Nations protected their harvesting rights (such as hunting, fishing, trapping and gathering activities, etc.). These rights are now protected under section 35 of the Canadian Constitution. “

NetNewsLedger has asked the Minister, through his officials to explain what exactly “Unceded territory” is, and how does that change the discussions over Wet’suwet’en traditional lands mean. The ICS Ministry suggested contacting Justice Canada. Minister of Natural Resources and who formerly served as Minister of Indigenous Services Seamus O’Regan, was also asked and deferred to ISC to answer the question. The Justice Ministry has so far not responded.

In the Ministerial Mandate Letters from Prime Minister Trudeau to all of his cabinet members, it states: “There remains no more important relationship to me and to Canada than the one with Indigenous Peoples. We made significant progress in our last mandate on supporting self-determination, improving service delivery and advancing reconciliation. I am directing every single Minister to determine what they can do in their specific portfolio to accelerate and build on the progress we have made with First Nations, Inuit and Métis Peoples.

“I also expect us to continue to raise the bar on openness, effectiveness and transparency in government. This means a government that is open by default. It means better digital capacity and services for Canadians. It means a strong and resilient public service. It also means humility and continuing to acknowledge mistakes when we make them. Canadians do not expect us to be perfect; they expect us to be diligent, honest, open and sincere in our efforts to serve the public interest.”

One might wonder exactly what growing numbers of Indigenous people across Canada consider the value of those words, when heavily armed RCMP officers in full military tactical uniforms are moving into their territory and arresting people.

Assembly of First Nations (AFN) National Chief Perry Bellegarde issued the following statement on the situation in Wet’suwet’en Nation territory and the arrests by the RCMP:

“People should never be criminalized for standing up for their lands. Our thoughts are for the safety and security of everyone in Wet’suwet’en territory. The RCMP needs to pull back and the federal and provincial Crown needs to step up and create a space for dialogue with the Wet’suwet’en leadership. It’s clear it’s the only way forward.

“I am pushing to create that space for dialogue with my colleagues. I’ve been in contact with our BC Regional Chief Terry Teegee. I have also spoken to RCMP Commissioner Lucki to encourage a peaceful resolution. I am further urging the Premier of British Columbia and the federal government to respect First Nations rights and the UN Declaration on the Rights of Indigenous Peoples.

“As it stands, the RCMP is only sworn to uphold civil law and common law. If we are to move forward with reconciliation, Canada must also recognize First Nations laws.

“The AFN supports the governance and decision-making process of the Wet’suwet’en people. Canada and BC must do the same.”

The Assembly of Manitoba Chiefs have also raise the issue, on Sunday, February 16, 2020, Grand Chief Dumas said, “Canada is a country made up of many laws and governing systems, from Quebec’s civil law system to Canada’s common law system. There are also different laws in different provinces and territories. So, too are there different laws and governing systems for First Nations that long pre-date Canada. Our traditional laws and governing structures have never been surrendered or extinguished. Today, our laws are protected within Canada’s Constitution, as well as in international treaties to which Canada is bound. It is time that governments stop acting outside the law and follow the rule of law in our territories – all of the laws. I truly want to thank those individuals who are braving the elements in the interest of protecting Mother Earth and showing solidarity with our relatives out west through these forms of protest. This is a true demonstration of collective power”.

Anishinabek Nation Grand Council Chief Glen Hare says the Wet’suwet’en fought for many years in the Delgamuukw-Gisday’wa court case to have their sovereignty recognized and affirmed by Canadian law.

“In 1997, the Supreme Court of Canada ruled that the Wet’suwet’en people, as represented by their hereditary leaders, had not given up rights and title to their 22,000 square kilometre territory.

“We support the Wet’suwet’en who are protecting their First Nation lands and territory from encroachment,” says Grand Council Chief Hare. “We have concerns regarding the safety of all those involved on the ground, and every effort should be made by all involved to dialogue towards a resolution to the situation. We must ensure that the police tone down their use of force.”

The Mohawk Council of Akwesasne is standing in solidarity with the Wet’suwet’en and Unist’ot’en Camp supporters in their efforts to protect their traditional land from the unwanted development of a gas pipeline.

We call on Canada to exercise peaceful negotiations and to utilize their vast resources to explore resolutions and alternatives that will respect the Indigenous People of this land, will honour our inherent rights, and will recognize and uphold our duty as Onkwehonwe (Indigenous) people to protect Mother Earth and the precious land we have very little of.

The Mohawk Council of Akwesasne calls on Canada and the RCMP to uphold the United Nations Declaration on the Rights of Indigenous People, which states,

“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

“Consultation and consent are critical elements to the peaceful co-existence of First Nations people and Canada. We call on Canada to be diligent in their responsibilities and resolve this matter peacefully. Violence of any kind is unquestionably condemned..

“As indigenous people, we can and must stand together in great numbers to protect our lands, culture and our future generations. We send our support and strength to all those supporting the Wet’suwet’en, and call for good minds to come together