February 17, 2020 — The current conflict between the Wet’suwet’en First Nations and Coastal GasLink has to do with a natural gas pipeline that Coastal Gaslink wants to build, some of which would pass through traditional Wet’suwet’en territory in the northwestern central interior of British Columbia. The Wet’suwet’en elected chiefs and councils have approved the project, but the hereditary chiefs have not. The hereditary chiefs have proposed at least two alternative routes over the years that would pass over less ecologically and culturally sensitive lands, but the company found these proposals, among other difficulties, too expensive. Here are some notes to help our readers understand some facets of the controversy: the difference between hereditary and elected chiefs, and aspects of Indigenous land rights. These notes are my own understanding of the issues, based on my reading and consultation. I may be mistaken or biased and partial, but this is my best effort for now.
Indigenous bands have elected chiefs and councils elected by their band members. They are elected under the authority of the Indian Act of 1876, which governs relations between the government of Canada and First Nations bands in the country. Despite recent amendments to mitigate some of the impacts of this nineteenth century legislation, it essentially imposes a colonial relationship between Canada and Indigenous Peoples. (Very many Indigenous and non-Indigenous people in Canada want the Act to be replaced by new legislation that would set up equitable nation-to-nation types of relations, and that would be chosen by Indigenous Peoples instead of being imposed on them.)
Not all indigenous bands have hereditary chiefs. In those that do, the hereditary chiefs are often descended from patrilineal or matrilineal lines that predate colonization. Today they are often recognized as knowledge keepers and are sometimes seen as having special authority with respect to traditional territories or cultural traditions. Because of the connection of elected Indigenous band officials with the Indian Act and therefore with imposed colonial relations, some people give more legitimacy to the hereditary chiefs, as seems to be the case with some who are speaking out about the Wet’suwet’en — Coastal GasLink situation.
In recent decades, decisions by the Supreme Court of Canada have tended to support Indigenous land claims. A Supreme Court decision of 1997, often referred to as “Delgamuukw”, had precedent-setting effects on the understanding of Indigenous title to lands, especially on unceded (unceded by treaty or other formal agreement), traditional territory. The Supreme Court found that Indigenous Peoples had an exclusive right to the lands of their traditional territories, and that this had been affirmed as an “existing aboriginal right” in the Constitution Act of 1982. It also admitted the legal validity of oral history as evidence for aboriginal title. The “existing aboriginal right” meant that provincial governments did not have the right to “extinguish” aboriginal title, which would in turn enable the government to allow non-Indigenous economic activity on the land. Furthermore, the United Nations Declaration on the Rights of Indigenous Peoples (2007), which Canada has ratified, speaks of obtaining “free and informed consent prior to the approval of any project affecting their [Indigenous Peoples’] lands or territories or other resources…” (Article 32.2).
Delgamuukw, and subsequent Supreme Court decisions, clarified many questions about Indigenous land title, but did not resolve all of them or implement them. The Supreme Court decisions certainly mean fair compensation for mutually agreed-to use of Indigenous lands and may imply deeper consultation than has already occurred. Indeed, little if any legislation that would implement the Supreme Court’s decision has been passed, which is one of the basic reasons why there seems to be an impasse now between the Wet’suwet’en hereditary chiefs, Coastal GasLink, the government of B.C. and the federal government.
CC Image courtesy of Jason Hargrove on Flickr [CC BY-SA 4.0], via Wikimedia Commons
