The lawyer who represented the Wet’suwet’en hereditary chiefs in a historic land rights case in the 1980s and ’90s says Sunday’s proposed agreement between the chiefs and the provincial and federal governments is a “powerful” first step towards a resolution.
Peter Grant struggled to keep his emotions in check as he thought back on the former chiefs, many of whom have died, and their struggles throughout the years-long Delgamuukw case that was left dangling by the Supreme Court of Canada in 1997.
In particular, he remembered the day he and the other chiefs learned of the initial trial judge’s decision on the case nearly 29 years ago, on March 8, 1991 — in nearly the exact same spot in Smithers, B.C., where he spoke to reporters Sunday.
“We now have come, 29 years later, where Canada and British Columbia realized that they had to, as the Supreme Court of Canada said in 1997, they have to recognize Wet’suwet’en title on their Yintah (land). And that will change the whole dynamic, in my view. That is what those elders wanted.”
While the details of Sunday’s proposal have not been released — and still need to be agreed to by all clans within the Wet’suwet’en Nation — the chiefs, Crown-Indigenous Relations Minister Carolyn Bennett and her B.C. counterpart Scott Fraser said it begins to resolve the Delgamuukw case fought by Grant all those years ago.
Grant explained how the hereditary chiefs at the time, during the arguments for the case, experienced “gruesome and racist” cross-examinations as Crown lawyers grilled them on their connections to the land and their Indigenous status.
After losing the initial court challenge, Grant and the chiefs appealed, pressing the case all the way to the Supreme Court.
The final decision saw the court acknowledge the existence of Aboriginal title as an exclusive and ancestral right to the land, which remains unextinguished. But the ruling did not decide on what lands actually belong to the Wet’suwet’en, and called for further negotiations between government and First Nations.
Internal memos, emails and other documents secured through a freedom of information request found the B.C. government was “deeply shaken” by the decision and how it would affect industry.
The documents were recently shared in the Narwhal magazine in a story co-written by the research director of the Yellowhead Institute, a First Nations-led think tank, which first obtained the materials.
An email sent in 1998 by Doug Caul — who was then a director with the Aboriginal affairs branch of the Forests Ministry and is now B.C.’s deputy Indigenous relations minister — suggested future litigation could help determine the scope of Aboriginal title.
He later told the Canadian Press that his long-standing view remains that government should answer those questions through negotiation and dialogue rather than the courts.
Grant says the negotiations that began Thursday and wrapped up late Saturday night achieved what his clients had long fought for, although he acknowledged there’s more work to be done.
“It’s not a completion, but it’s what should have happened 23 years ago. We’re 23 years late, but at least we’re here,” Grant said, referring to the 1997 Supreme Court ruling.
He also wouldn’t comment on how the agreement may affect the Coastal GasLink pipeline project, which is still set to be built through traditional Wet’suwet’en territory despite the chiefs’ opposition.
The chiefs and the ministers said Sunday that the agreement is not retroactive, meaning Coastal GasLink will not be sent back to the drawing board even if the agreement is formally signed.
Bennett on Sunday still called the proposed agreement a “beginning” in a new relationship between government and Indigenous peoples, while Fraser called it a process that was “long overdue.” Chief Woos, one of the Wet’suwet’en hereditary chiefs who engaged in the discussions, called it a “milestone.”
Grant, too, would only see the tentative deal as a positive way forward.
“It’s going to be on the governments to educate the non-Wet’suwet’en about what this is, and to provide the assurance that it’s OK. We still have a country called Canada, it’s OK,” he said.
—With files from Sarah MacDonald and the Canadian Press