Non-Indigenous elected officials are staying quiet about a title deal made with a small group of unelected hereditary chiefs, despite calls for transparency from elected Wet'suwet'en chiefs. What's really going on in this challenging situation? Stewart Muir, who travelled widely in the affected areas earlier this year, weighs the facts so far.
Band headquarters (including school) of the Witset First Nation north of Smithers. It is the largest of the Wet'suwet'en groups numbering 1800 people on and off reserve. The government functions of the elected council may be extensive, but were deemed not relevant to determining the future of the broader fate of the first nation.
A flickering light
The legal thesis of the Memorandum of Understanding is that it represents the tardy implementation of the "flickering light" of the 25-year-old Delgamuukw ruling. In practice, during those years things have evolved and elected bands now do much more than they ever did in providing government services. Through their own behaviour, in recognizing that band councils have a role to play and then signing benefit agreements with Indian Act bands, governments have recognized and acknowledged that a dual governance system exists in reality and that both elected band councils and hereditary chiefs have a role in economic development decisions across the wider territory
The MOU represents a material shift in economic development strategy, which in recent years has relied on elected First Nations entities to engage in benefit and royalty sharing agreements with governments and resource operators on traditional territories. How abandoned the band chiefs must feel having invested so much faith in the federal government to aid in the realization of what is really a rather modest level of economic aspiration that is now effectively dashed.
The requirement that communities be consulted prior to May 14 signing was not fulfilled. Turnout to local meetings was sparse, information tightly controlled, then COVID19… Only a minority of the groups agreed to the MOU. Formal approval of the MOU was obtained from only two out of the five bands, and initial information sessions held with the elected band councils were perfunctory and were not followed through in a meaningful way.
The chiefs met with the provincial and federal ministers recently and have been refused any kind of status in the implementation phase. These chiefs earlier opposed the MOU process because they were excluded from it. Some support the CGL natural gas pipeline project and others do not.
Even the hereditary chiefs have described a patchy consultation process since the Feb. 29 draft was signed in the heat of the national blockade crisis, which was conducted in the name of the Wet'suwet'en (though with the actual endorsement of scant few members that I was able to find). Correspondence to the federal minister claims that meetings were held with over 450 members of Wet’suwet’en communities – a small minority of the total population. COVID19 interrupted things and, depending on who you talk to, only two or three of the clans were supportive.
Developments thus far suggest a clouded future for Wet'suwet'en governance. Hereditary chiefs will have exclusive dominion over natural resources, which is also the area that in recent years has allowed the elected councils to extract revenues for social services, through various benefit agreements with corporations. Elected bands have used their ability to enter into revenue agreements to fund things like housing, administrative facilities, local transportation, seniors and health. Depending on how the MOU is read, their access to such revenues may be eliminated in future, even though it does not appear to transfer to the hereditary chiefs any of the responsibility for ensuring that services are delivered.
Having tasted a brief moment of self-reliance and pathways to prosperity, the band councils must now face the strong possibility that they will enter a state of permanent subjugation to the terms of a deal secretly negotiated with a handful of hereditary title holders.
Anyone who believes that the MOU represents a quid pro quo – title issues cleared away in return for CGL acceptance – is mistaken. Some of the hereditary chiefs who have been granted control have stated that they remain opposed to the Coastal GasLink pipeline. Some continue to work closely with the pressure groups that organize on-the-ground civil disobedience and protest actions. Rather, it is a demonstration that economic terrorism can bring governments in Canada to their knees for supporting resource development and encouraging benefit agreements with industry.
I am hearing from legal experts that the shift in reconciliation strategy represented by these developments will also call into question the benefit agreements that have allowed numerous industrial investments around B.C. to take place, and this move throws all of them into question. The MOU affects mining, forestry and transportation operations in the Wet’suwet’en areas though we won’t know for some time exactly how. Some lawyers are advising corporate clients that it could affect the entire province of B.C. and potentially other parts of Canada, by undercutting the legitimacy and legal certainty of agreements that resource proponents or governments have entered into with elected band councils with respect to resource projects on beyond the boundaries of reservations. I can find no evidence that the ministers who signed the MOU paused to consider the wider consequences of their move.
Wet’suwet’en members, including band chiefs, are not opposed to the hereditary system, which is deeply and universally respected. The concern I hear most of often is that an atrophied ancient governance system has been reactivated to serve particular interests, and the federal and provincial governments have simply gone along with this.
The MOU requires that a reunification plan be put into place for the Wet'suwet'en nation and that there be a stable, defined, transparent governance regime in place before the transfers of jurisdiction. In treaty processes generally, governments have always insisted on ratification through a proper vote by the entire nation, because hereditary protocols alone have not provided a sound legal basis for such decisions. If the Wet'suwet'en process to date is anything to go by, promises of community accountability mean little. For things to unfold from here in a persuasive and transparent way that builds legitimacy, excluding the elected chiefs from the table seems like a counterintuitive choice. Yet the ministers responsible have refused to grant this access. If justice is still possible, it has to involve ensuring that the elected leaders are allowed into the process.
Commentary by Stewart Muir, MA. He is executive director of Resource Works and travelled extensively in Wet'suwet'en communities in 2020.
- Wet'suwet'en First Nation
- Hagwilget Village First Nation
- Witset First Nation (formerly Moricetown)
- Nee-Tahi-Buhn Band
- Skin Tyee Band
- Ts'il Kaz Koh First Nation (aka as the Burns Lake Indian Band)
- Gilseyhu (Big Frog)
- Laksilyu (Small Frog)
- Gitdumden (Wolf/Bear), also spelt Gitumden
- Laksamshu (Fireweed)
- Tsayu (Beaver clan)
There are 13 houses spread across the clans. Each is supposed to have a House Chief. Several are vacant. Hereditary chiefs, of which there are 174 possible, can also be elected, which they often are.
In general, sources related that the traditional hereditary system has been compromised. The traditional "seat of government," the feast hall, is no longer being used as the laws dictate. For example, feast attendance signifies public trust. If people refuse to attend a feast, that is a form of participatory democracy. There are intricate customs about prior notification. Traditionally, runners would go and announce a feast across the land. A feast wasn't considered legitimate unless this occurred. In contrast, a most recent All-Clans meeting was announced a day before. It was set up as a feast (in terms of seating) yet some of those authorized to attend content that it was sparsely attended. Questions were raised about the propriety of conducting a feast with so little notice where access to open discussion on the floor is limited.
In the Wet'suwet'en tradition, decision-making is consensus-based, not hegemonic. Chiefs have influence and responsibilities, but the decisionmakers are the people. Custom dictates that people don't publicly voice their displeasure outside the feast hall.
Reference texts: Ways of Our Ancestors and Eagle Down Is Our Law.
Background research by Margareta Dovgal