Reconciliation means making one system compatible with another, not Indigenous law trumping Canadian law at the behest of some self-anointed aristocrats
The “territorial re-occupation” of land along the proposed Coastal GasLink pipeline in B.C. by hereditary chiefs of the Wet’suwet’en people has raised some thorny constitutional questions and some surprising interventions.
The $6.2 billion, 670 km pipeline route runs from Dawson Creek, near the Alberta border, to Kitimat in B.C.’s north coast region, crossing through traditional Wet’suwet’en territory.
The pipeline is supported by the five Wet’suwet’en bands, and their elected chiefs and councils. They point out the advantages for local communities – financial benefit agreements worth $338 million for the 20 bands along the route and contract work for indigenous businesses estimated at $620 million. Reginald Ogen, president of a company that has won a $75 million contract to provide camp facilities, has noted that the jobs may be short and medium term but the training “lasts a lifetime and provides future opportunities”.
The project is opposed by the hereditary chiefs who represent the 13 Wet’suwet’en houses (12 are represented by the Office of the Wet’suwet’en, while the Dark House operates independently). Small groups of “land defenders” have blocked a bridge crucial to future development.
The project hit the headlines earlier this month when the United Nations Committee for the Elimination of Racial Discrimination called for an immediate stop to construction, only to be given pause for thought when it was pointed out to the committee chair that most communities along the route support the pipeline.
This has sparked a debate about who speaks for the Wet’suwet’en. Former justice minister Jody Wilson-Raybould weighed in with an opinion piece in the Globe and Mail last week that raised eyebrows.
The independent MP for Vancouver Granville argued that Indigenous reconciliation requires moving beyond the Indian Act to systems of Indigenous governance that are created on the ground and recognized by others.
So far, so good. But deconstructing the colonial reality, in Wilson-Raybould’s eyes, means blowing up the band councils.
“The legal reality is that band councils are a creature of the colonial Indian Act and have limited delegated authority tied to reserves,” she said. “They do not have inherent authority, nor are they self-governing or an expression of self-determination. They cannot simply represent the proper rights holder – the broader group that shares a common language, culture and tradition – and typically there is more than one band within a given territory of an Indigenous people.”
Nowhere in her article does it stress the imperative point – they are elected and those claiming to speak for the broader First Nation are not.
She doesn’t explicitly come out in favour of the hereditary chiefs over the elected band chiefs but she comes close – an extraordinary inclination from a democratically elected MP.
In the case in question, all the band chiefs in the given territory are in favour of the pipeline proceeding.
Most people would probably agree that it should be up to Indigenous people to decide on how they are governed. The government has suggested moving from 670 small bands to larger First Nations more capable of delivering services.
There are no simple answers to these tough questions
But one would hope that whatever structure evolves is based on universal suffrage and democratic principles, rather than on some form of feudal genealogy.
The hereditary chiefs contend that the Wet’suwet’en are represented by traditional governance structures and that, since the pipeline’s proponents were not given permission to enter unceded territory, they are in violation of Wet’suwet’en law.
The elected chiefs beg to differ, resulting in considerable tension between the two groups. Reginald Ogen, who is a member of the Wet’suwet’en First Nation, contends his section 35 rights are being infringed by the blockade.
Further confusion has emanated from an internal debate about who qualifies as a hereditary house chief. The lead defendants in the B.C. Supreme Court case claim to represent the Unist’ot’en people, which is not a governing body of the Wet’suwet’en.
Madam Justice Church resolved that Indigenous customary laws are not an “effectual” part of Canadian law until they are somehow recognized in treaties or court declarations. As such, she said the idea that Indigenous laws supersede Canadian law and the B.C. government’s approval of the Coastal GasLink pipeline does not stand up to scrutiny. Her ruling gives RCMP the right to arrest people and remove camps designed to block pipeline construction.
However, she did acknowledge that the question is complex and raises “significant constitutional questions.” Wilson-Raybould covered some of this terrain in her article, which called for a “foundational legislative shift through the development of a recognition and implementation of Indigenous rights framework”.
What does foundational shift look like? In her last act as justice minister, Wilson-Raybould issued a directive on civil litigation involving Indigenous people that promoted negotiation and settlement, instead of drawn out court battles. Critics in the justice department felt the effect was to instruct government lawyers to litigate badly.
Dwight Newman, the Canadian research chair in Indigenous Rights at the University of Saskatchewan, said the task of reconciling how Indigenous law intersects with Canadian law will be problematic.
“There are no simple answers to these tough questions,” he said.
But reconciliation means making one system compatible with another. As the B.C. Supreme Court rightly concluded, it does not mean Indigenous law trumping Canadian law at the behest of some self-anointed Indigenous aristocrats. SOURCE