By: Sarah Baker

On Monday January 7^th 2019, video footage of RCMP officers arresting 14 protesters at the Gidimt’en checkpoint in northern British Colombia dominated national news reports and social media. The situation  escalated following the decision of the BC Supreme Court to issue an injunction on December 14^th , granting access to Coastal GasLink pipeline workers to Wet’suwet’en First Nations territory to begin construction on a natural gas pipeline, in spite of attempts by First Nations hereditary chiefs to bar entry to workers.

Legally, the BC government is obligated to “adequately consult and accommodate” the Wet’suwet’en First Nations through their elected band council on land and resource decisions that affect their territories, and it has claimed to have done so through its consultation process. TransCanada Corporation, which oversees the Costal Gaslink pipeline project, has also claimed to have fulfilled its consultation requirements, as it has received approval from all 20 elected First Nations band councils, including the Wet’suwet’en, that reside along the pipeline’s parameter.

This all leads to an obvious question – if the BC government and Coastal GasLink pipeline project have both consulted and received consent from the Wet’suwet’en First Nations, why are there protests taking place?

Similar to other First Nations, the Wet’suwet’en are governed by a dual leadership structure in which both hereditary leaders and band councils have authority. Hereditary leaders, the traditional authority, pre-date the elected band councils established by the Canadian government. The Wet’suwet’en hereditary leaders have continuously opposed the pipeline’s construction, warning of the negative environmental impacts to the habitats of fish, caribou and grizzly bears, wetlands and waterways, as well as the increases of greenhouse gas emissions. On the other hand, the band council, the elected authority established as a result of the 1876 Indian Act, has given its approval to the project, stating that the profits received would be spent on essential services, such as education and eldercare.

This article will take a closer look at the dual hereditary and elected leadership structures used by some First Nations in Canada, and will seek to clarify the ways in which this dual model impacts internal governance as well as Indigenous-Crown relations.

Hereditary Chiefs

The appointment of hereditary chiefs in First Nations communities has been the traditional method of governing for thousands of years, preceding the arrival of Europeans. The hereditary chiefs govern using ingrained cultural principles, and are regarded as caretakers of their communities and protectors of generations-old traditions. The process by which hereditary leaders are appointed, the titles they bear, and the authorities they exercise, are specific to each First Nation.

For the Wet’suwet’en First Nation, hereditary leadership is based on a clan and house system. The position of chief is inherited through an individual’s matrilineal lineage, and is passed down through a potlach system, a ceremony in which official matters of the community (including the granting of official titles and roles) are determined. Currently, hereditary chiefs do not hold any authority that is legitimately recognized by the Canadian government and instead, the elected band councils are regarded as the sole formal authority.  The role of the hereditary chiefs is therefore limited to moral leadership, used to guide the elected chiefs, council, and community members towards decisions that honour their traditional belief systems.

In the case of the pipeline on the Wet’suwet’en territory, the matter is further complicated by the fact that band councils only legally govern the land on reserves, while the traditional Wet’suwet’en territory, which extends beyond the borders of the reserves and spans roughly 22,000 square kilometers, falls under the governance of the hereditary chiefs according to the governing structures of the First Nations. Aboriginal Title over these traditional territories, and the role of the hereditary chiefs in governance, was recognized in a landmark 1997 Supreme Court of Canada ruling, Delgamuukw v. British Columbia, which many in Wet’suwet’en First Nation cite today as proof of the legitimacy of their protest.  

In short, contracts signed by the elected band chiefs and councils are legally valid only as they pertain to the reserves, rather than the entirety of the territory over which the First Nation holds Title. As hereditary chiefs are regarded as protectors of the traditional territory, and that territory has not been ceded via treaties with the Crown, the contracts signed by the elected chief band and council are deemed by the hereditary chiefs to be insufficient to grant access for the pipeline project. This situation is unique to British Colombia in comparison to the rest of the country, as few treaties were ever negotiated with the Crown prior to the imposition of the Indian Act. The legal scope and extent of Indigenous rights and Title in BC is thus shrouded in ambiguity, with only a handful of court rulings available to flesh out the boundaries.

Band Councils

Band Councils were established by the Indian Act, which was passed by the federal government in 1876 in an attempt to develop a more synchronized approach to managing the affairs of First Nations people. Alongside a number of regressive and paternalistic policies -including the creation of residential schools and reserves, the band council system was established by the Act to replace traditional Indigenous self-government. This was based on the notion that an elections system would push First Nations towards cultural assimilation. The Act lays out a system whereby First Nations communities carry out elections every two years to select the chief and council members for their band. Generally, the number of council members is dependent on population, with a minimum of two councillors required. The chief and council members are accountable to the people who elected them, but are subject to the authority of the federal government, in what is termed as the “principal – agent accountability relationship.” In this relationship, the government plays the role of the principal and the chief and council play the role of agents, with obligations to the principal that must be fulfilled. Simply put, this means that band councils do not operate as truly self-governing bodies, but rather as “creatures” of federal law.

Why do these two forms of governance continue to exist simultaneously?

Band councils were developed because the Canadian government in the 19^th century regarded traditional hereditary leadership structures as backwards and illegitimate. They were imposed without consultation or consent. Consequently, many First Nations continue to recognize hereditary chiefs in their communities in spite of the legally-mandated band council structure. However, rejecting the Act’s impositions altogether is not an option: a reliance on federal funding for basic services, the violent colonial past of residential schools, and the reserve system pose significant challenges for First Nations communities. Resisting the governance structure and failing to comply with the Indian Act could potentially result in a denial of funding, further harming an already vulnerable population.

Who makes the final call within First Nations Communities?  

There is no simple protocol that exists to guide First Nations communities with a governance system that encompasses both hereditary chiefs and a band council. Some communities choose to assign different responsibilities to each leadership. For example, band councils may be responsible for education and health provisions, while hereditary chiefs may be given responsibilities in regards to land management. Alternatively, hereditary chiefs may play more of an advisory role to an elected council on matters relating to government relations. The Wet’suwet’en pipeline situation demonstrates the confusion that having two forms of governance can create, especially when only one form is recognized by government authorities.

Relationship with the Government

Under the Indian Act, the government and industry are required to officially consult only with the elected band councils. However, choosing to ignore the traditional governing structure of First Nations has not only proven to be insufficient, as illustrated by the explosive events at the
Gidimt’en checkpoint, but also risks falling out of step with Article 32.2 of the United Nations Declaration on the Rights of Indigenous Peoples: “States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.” Therefore, if governments in Canada are truly committed to reconciliation, it is unlikely they can continue to ignore the traditional leadership structures in First Nation communities.

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Sarah Baker is completing her second year in the Master of Public Policy program at the Munk School of Global Affairs and Public Policy, with a specialization in public health policy. She currently is a policy intern with the City of Mississauga, and has experience in consulting and the non-profit sector. In the long run, she hopes to influence the development and refinement of health policies to improve the quality and accessibility of mental health services.