Part of Jack Webster Foundation-nominated team series (Best Breaking News Reporting Award) published in The Toronto Star & Star Vancouver | Jan. 10, 2019
Antonia Mills sighed Thursday as she remembered the words of B.C.’s chief justice in a history-shaping lawsuit 28 years ago.
“No written language, no horses or wheeled vehicles,” chief justice Allan McEachern read aloud to a shocked courtroom in 1991. “Aboriginal life in the territory (before European contact) was, at best, nasty, brutish and short.”
But as Mills recalls it, those words were not the most outrageous heard by the Wet’suwet’en and Gitksan nation hereditary chiefs who launched the lawsuit against British Columbia.
No, most disappointing was the judge’s declaration that Indigenous rights “are extinguishable at the pleasure of the sovereign” — because the colonial-era Crown had already intended to eliminate any rights to the land that “might otherwise have prevented it from transferring title to its settlers.”
Mills, now 76 and a professor in the University of Northern B.C.’s First Nations Studies program, had worked as an anthropologist for the Wet’suwet’en since 1985 as they prepared their case. Its hereditary leaders, and those of its northern B.C. neighbour the Gitksan, would eventually win in Canada’s highest court in a watershed Indigenous rights ruling known as “Delgamuukw” after one of the hereditary Gitksan chiefs.
The importance of hereditary leaders came to the forefront this week, after heavily armed RCMP tactical officers stormed a Wet’suwet’en barricade set up to block workers for the planned Coastal GasLink pipeline.
Two days after police arrested 14 people there on Monday, it was hereditary chiefs who led the RCMP past a second checkpoint. It was those hereditary chiefs who helped negotiate a temporary end to the impasse. And on Thursday, it was the hereditary chiefs from the nation’s five traditional clans with whom Coastal GasLink negotiated an agreement.
But the clash at the barricade has led to public confusion about the distinction between the hereditary leaders — representing 12 houses within five Wet’suwet’en clans — and the elected chiefs and councils of the five First Nations bands of the Wet’suwet’en, four of which have signed agreements with Coastal GasLink.
Blair King, a chemist and a frequent commenter on industry and the environment, tweeted: “We have the elected representatives of the community on one side and the hereditary leaders (aristocrats born into positions of power) on the other … and the activists are on the side of the aristocrats?”
Confusion appeared to be shared even at the highest levels.
“The challenge for governments, federal and provincial, is determining how we bring together the historic band council model,” Premier John Horgan told reporters Wednesday, “with the emerging hereditary model that’s very much manifesting itself in Unist’ot’en territory.”
Mills was blunt in her reaction to the premier’s words: “Hereditary chiefs are ‘emergent?’” she exclaimed. “As if the elected chiefs were the old ones?
“I think somehow he doesn’t understand that the hereditary chief system is thousands of years old. It’s traditional and it never ceased. It’s been in continuous existence but had to go underground without letting anyone know because the stupid Canadian government would not accept the First Nations’ ways of doing things and made it illegal.”
Under Canada’s 19th-century Indian Act, today’s roughly 2,500-member Wet’suwet’en nation is divided into five independent First Nations governed by band councils, spread over more than 20 small reserves. Coastal GasLink boasts benefit agreements with every band council along its planned route; for the 150-member “Wet’suwet’en First Nation,” for instance, it offered $13 million for its support.
But while that band’s elected council signed the deal, all five of the clans that make up the larger Wet’suwet’en nation are revolting against the decision. The clan chiefs say that the First Nation’s band council only has jurisdiction over the reserve, not their entire traditional territories.
“This dispute is characterized is as if there’s a dichotomy between the hereditary and elected chiefs,” said Val Napoleon, the University of Victoria’s Law Foundation professor of Aboriginal justice and governance and co-founder of the school’s new Indigenous law program, in a phone interview Wednesday. “That’s a problematic oversimplification.
“There’s no sharp line within the Wet’suwet’en people. Some of the people on the band council are also hereditary chiefs. You’re talking about the same families, house groups and clans, all people linked by history, family and being part of a historic society that has its own legal order that’s been undermined.”
Hereditary chiefs, Napoleon said, receive their authority by “fulfilling their obligations” to their people and their land. But at the same time, First Nations band council leaders also believe they’re fulfilling their obligations.
“They all understand themselves as acting in the best interests of their members,” said Napoleon, who is Cree from northeast B.C.’s Saulteau First Nation but was adopted into the Gitksan nation. “That’s the reality you see in some of these conflicts.
“If you look at the Delgamuukw court case … it was clear the hereditary chiefs have authority over the traditional territories and band councils have authority over the reserves.”
Asked about how Wet’suwet’en chiefs are chosen, Mills said the ancient system isn’t passed down through parentage — like the British royal family, whose leader remains Canada’s head of state — but rather by being bestowed in public with the previous chief’s name and regalia.
Each Wet’suwet’en house is headed by a hereditary chief, chosen “based on their nature, their comportment and their knowledge and skills.” Those are the same chiefs who collectively represent their clan.
“When they say ‘hereditary,’ they’re not referring to genetics but something you inherit by virtue of your comportment, and if you stand up for the rights and traditions of everybody,” she said.
And in “extremely rare” circumstances, she said, a hereditary chief can be stripped of their title by their peers. That happened last year when three leaders were accused of signing secret deals with Coastal GasLink.
But with reserves across B.C. and Canada maintaining severely disproportionate unemployment, suicide rates and below-average funding for education and child welfare services, band councils are under tremendous pressure to find extra funding — and jobs for their members.
Those truths weighed heavily on Ellis Ross, who was an elected band councillor of Haisla First Nation before he became an MLA with the BC Liberals. In a video he released on his Facebook page after the raid on Wet’suwet’en territory, Ross bemoaned the conditions on many reserves and recalled overcoming his own skepticism about industry promises.
“Just about every elected leader that I’ve met that really, truly wanted to do something for their people felt helpless because they’re not given any tools,” Ross said. “The Indian Act doesn’t offer any solutions, and even their own community members might not understand what they’re doing and oppose their own elected leadership.”
Ross said his time in elected band leadership changed his mind about industry because “band members were talking about there being no jobs for their kids, and they were tired of being excluded from the economy,” he said.
“If you are really considering the full impact of economic development, whether good or bad, I want you to remember how positive it can be for First Nations people to finally able to participate.”
However, the Unist’ot’en Camp’s statement issued after the hereditary chiefs’ agreement with RCMP on Wednesday proclaimed their struggle is “about more than a pipeline”; it’s about consent.
“There can be no question now that this is an issue of Wet’suwet’en rights and title,” the camp’s statement reads. “This is not an issue of individual ‘protesters’ but rather an issue of our house chiefs’ jurisdiction to make decisions on our own lands.”