EDMONTON — The controversy in British Columbia, with Indigenous people blocking access to a pipeline and facing down armed police until a deal was reached Thursday, has some of its roots in the intricacies of Indigenous governance.
Coastal GasLink, a subsidiary of TransCanada Corp., which is changing its name to TC Energy, is building a natural gas pipeline between Dawson Creek and Kitimat, where there’s a major natural gas facility, over which Prime Minister Justin Trudeau and B.C. Premier John Horgan exulted just weeks ago.
Coastal GasLink says it has signed deals with all First Nations along the pipeline route.
But it’s not quite so simple, because there are 13 hereditary leaders within the five clans that comprise the Wet’suwet’en nation, as well as six elected band councils. Along the routes to the pipeline, clans have set up two checkpoints and have cut off access to the pipeline. On Dec. 14, the British Columbia Supreme Court issued an injunction to allow workers access to the site. And on Jan. 7, the RCMP moved in, arresting 14 people.
So, while there are other issues at play here, there is the specific question about hereditary chiefs, many of whom oppose the pipeline, versus elected chiefs, who have favoured it, and what the differences and powers are between the two.
What’s the difference?
Elected chiefs are elected under processes established either through the Indian Act, the First Nations Elections Act, band custom or, in the case of self-governing First Nations, under the band’s constitution, explains The Canadian Encyclopedia. James Dempsey, a Native Studies professor at the University of Alberta, said in many places, a chief and council has simply become the accepted form of government.
“But you also have others that are trying to, to whatever degree they can, re-institute the traditional way of government and sometimes it comes into conflict with the chief and council,” he said.
Hereditary chiefs are just that, hereditary — a traditional form of government.
“Before non-native contact, a Wet’suwet’en heir began their journey to becoming a hereditary chief while still inside the mother’s womb,” says the Wet’suwet’en website. “Elders, Shaman’s and Chiefs would often feel the womb of an expectant mother and determine if the baby was destined to be a future Chief or Shaman. From the time of birth the child would be groomed or tutored to be a wise, strong and responsible leader.”
Robert Jago, a First Nations writer from a band under hereditary rule, explained that the powers vary widely. For some First Nations, hereditary chiefs act as dictators; for others, there’s full democratic rule, with hereditary leaders in title alone; and in others still, “open conflict” between hereditary chiefs and elected band councils or collaborative decision-making. “In this case, they seem to be in conflict,” said Jago.
It’s important to note that there isn’t one set of hereditary chiefs or one set of elected officials within the Wet’suwet’en nation. There are five clans, each of which has its own set of hereditary chiefs and then band councils, which comprise people from different clans.
What do they govern?
The short answer is it depends on the First Nation in question how the distinction breaks down between traditional governance and Indian Act governance.
In the case of the Wet’suwet’en, the hereditary chiefs argue that traditional territory is the purview of hereditary chiefs and the elected chief and council have authority over governance on reserve.
Peter Grant, who was counsel on the 1997 Supreme Court of Canada Delgamuukw land claims case, which involved the Wet’suwet’en hereditary chiefs, said that case “made it clear that when you’re dealing with the Wet’suwet’en, it’s the hereditary system you deal with.”
This, Jago said, isn’t the case in all circumstances. “There’s no hard line,” he said. In some areas, hereditary leaders defer entirely to the band council.
Ellis Ross, a Liberal member of the B.C. legislature, and former chief councillor of the Haisla nation, said there’s some case law that puts title questions with community, and not necessarily hereditary chiefs.
“There’s too much perception out there, there’s too much rhetoric … and no one’s challenging them,” Ross said. “Everyone’s just believing what they’re reading when really it’s up to community members to decide who represents them in what situations.”
“It comes down to every single community actually deals with it in a different way,” he said.
The tension between elected and traditional leaders has caused friction over the pipeline.
Notably, said Dempsey, this situation is sort of a uniquely British Columbia problem. Because the First Nations in B.C. don’t have treaties, like they do in Alberta, for example, title over traditional lands hasn’t been dealt with. “If we were having that issue in Alberta, this reserve versus traditional land issue would not arise, because with the numbered treaties, of course, the jurisdiction over traditional lands was extinguished,” Dempsey explained.
Traditional chiefs, Jago said, were often the ones who resisted Canada’s attempts to change governance structures and ran underground religious ceremonies.
“These hereditary rulers, they’re brave, like they stood up to the federal government ages ago,” Jago said. “So, they have a lot of cred with native people.”
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