RAVEN - Respecting Aboriginal Values and Environmental Needs

Get Clear on Wet’suwet’en Law: Unpacking Canadian Court and Media’s Confusion

There has been a lot of confusion in the media and even within the B.C. government about the place of Wet’suwet’en Indigenous law within the Canadian system.  Even as the RCMP occupy a bridge on the Morice River, Premier John Horgan blithely talks about a “familial dispute”. In fact, the discord between hereditary leadership systems and colonial governance systems is at the heart of the legal uncertainty that exists on unceded territory in B.C.: a schism that is unfolding dramatically in northern B.C. today.

Ever since the ground-breaking Supreme Court of Canada judgment in R. v. van der Peet, the recognition, by Canadian common law, of “the ancestral laws and customs of Aboriginal peoples” has run through Canadian legal history like a “golden thread”, as Justice Beverly McLachlin put it. 

Since that precedent-setting judgment, multiple court decisions have affirmed this principle and clarified how it can be applied in specific cases. In Pastion v Dene Tha’ First Nation, the Federal Court stated boldly: “Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land.” (emphasis ours) In other words: hereditary leadership, as upheld in Wet’suwet’en territory, is a legitimate form of governance and should not be overlooked when decisions are being made affecting territories under their jurisdiction.

Yet the golden thread seems to fray when confronted with deeply held colonial assumptions about the legitimacy of elected leadership, the “division” within the Wet’suwet’en community, and the ongoing burden on Indigenous Nations to prove title in order for Nations and their lands to be treated with respect by Canadian institutions. Take the Coastal Gas Link process. CGL, Canada and BC have treated elected chiefs and band councils – a form of governance created by the Indian Act – as primary negotiation partners. Coastal GasLink has signed benefit agreements with all 20 elected band councils along the 670-kilometre pipeline route, and much of the media coverage has interpreted this as legitimizing CGL’s claims. But the Wet’suwet’en people govern themselves as Clans and Houses (not bands), make decisions in their Feast Houses, and are led by Hereditary chiefs who draw their legitimacy neither through elections, nor through birthright alone (as in European monarchies) but through the Feast House process.

In fact, the Wet’suwet’en are one of the few Indigenous Nations in Canada whose hereditary governance system was explicitly affirmed by Canadian courts.  In 1997, the Supreme Court of Canada in Delgamuukw described the system of Clans and Houses with Hereditary Chiefs as “the fundamental premise of both the Gitksan and the Wet’suwet’en peoples.” Subsequently, the BC Supreme Court held in Canadian Forest Products Inc v Sam that “the Wet’suwet’en occupation and use of land is organized by the clan and house system upon which the law and essential social structure is ultimately based.” The BC Supreme Court went on to say that “each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief is given a duty to protect. The rights and responsibilities are confirmed, coordinated, and directed to the common good, in other words, governed, through the feast,” which is “central to Wet’suwet’en society and government”.

Since those Hereditary Chiefs have clearly expressed opposition to the CGL project, this should presumably be given significant weight as an expression of Wet’suwet’en governance. This is all the more pressing in light of the existing legal recognition of that system, including in the Supreme Court of Canada decision in Tsilhqot’in, where the Court held that the organization of a Nation into bands as a result of the reserve allocation process and the Indian Act “does not affect the identity of the Nation as the holder of rights.”

Unfortunately, the BC Supreme Court on Dec 31 granted an injunction against members of the Wet’suwet’en nation who have been stewarding and protecting their territories from Coastal Gas Link’s LNG pipeline. This is perhaps not surprising. According to West Coast Environmental Law and the Yellowhead Institute, injunction hearings are a notoriously difficult forum for Indigenous peoples to have their laws, title and rights upheld. (https://yellowheadinstitute.org/2019/11/14/injunctions-by-first-nations-results-of-a-national-study/). The Wet’suwet’en are contemplating further legal challenges to ensure respect for their land and governance.

Sign a letter to Coastal Gas Link urging them to respect Wet’suwet’en law: https://raventrust.com/unistoten/

You can also read the Open letter to Prime Minister Trudeau and Premier Horgan by academics and lawyers across Canada here.


7 Responses

  1. Shirley Johnson

    Excellent concise writing Maia, Everyone who takes the time to read this should be able to comprehend plus be a little more understanding ….and supportive. Miigwetch

  2. Arthur M Dick

    The BC Supreme Court does not respect the 1982 Constitution of Country Canada where as they grant Industry permission to rule over federally protected waters under the said Constitution. Corporate Canada as listed in the United Nations does not abide by its own by its own Supreme Court Rulings of the past which recognized Title and Rights. The very people tasked to protect us ready to shot innocent women and children. Proven by documents revealed they were ready to do this. I really wonder if any policy has changed within the CANADIAN POLICY ON TREATMENT OF OUR PEOPLE SINCE CONTACT.

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  5. Warren

    This article, along with a CBC analysis I dug up, have provided me with great information that I did not have before. Sure, I had heard the hereditary chiefs claim that they owned the land, but without any background information I was previously of the opinion that the Wet’suwet’en demands were flagrantly illegal, but this new (to me) information gives me plenty to reconsider.

    I actively searched for this information and of course it is there to be found, but I wish there was a way to better push this kind of information more proactively out: it would help people to have a more calm and logical discussion.

    I have read that the SCC ruling allows that interventions of infrastructure can still occur even without indigenous consent, but for that to happen the applicant would have to provide evidence of the strong need that would over-ride the lack of consent. As far as I can tell, that did not happen in this case so it is seeming more to me that the hereditary chiefs may be on solid ground.

    One thing that gives me pause is that the elected chiefs have all signed on to the pipeline. I read the explanation about the hereditary chiefs in this article, about how they are chosen through this feast activity. I acknowledge that elections are something imposed by the country, but still we ARE a democratic country. Can we, as a democratic country, allow authoritarian governing systems within it even if the people involved want that, and even if they are a Nation within the nation and so have special identity? What about this Feast process – is it actually some form of democratic voting just in another form?

    On the other hand, if the SCC explicitly conferred responsibility over the land to the hereditary chiefs, or if the elected chiefs have explicitly handed that responsibility to the hereditary chiefs, then it seems clear that the company and the government should have been talking to them all along – maybe instead of the elected chiefs.

    There are a lot of complex questions to work through! And it will not be possible to sort it all out in just a few days. I am guessing at this point that you would say you’ve been trying to get it sorted out for decades. Point taken, but now I think there is an opportunity to make real progress – but it still will take time.

    Even after all this new information, though, I think that both the blockades and allowing the eco-activist groups to get mixed in with all this is going to be very detrimental as things go on. I can see it was useful initially in getting the country’s attention, and to get people like me to actually try to learn what is going on. But the blockades are going to be the cause of violence soon, and when that happens people will stop listening to any message you are putting out there. And the non-indigenous eco-activists are just using the land dispute to further their own agenda of stopping the energy industry, and they will constantly divert energy and attention away from the issues of indigenous rights to their own agenda.

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