This Land is Their Land
In British Columbia, the First Nations are at war with oil and gas companies intent on exploiting their indigenous lands, and with each other over governance and tensions between a “democratic” present and their ancestral past.
Words: Dave Robertson
Illustration: Adrian Johnson
Set in the middle of a long, frigid winter, the Wet’suwet’en blockades of 2020 were the latest chapter in a long history of civil disobedience among the Indigenous peoples of Canada seeking to reclaim their right to self-determination. Demonstrators across Canada organised a series of peaceful, but formidable protests that disrupted commuter traffic, closed ports and temporarily disabled the country’s transcontinental railways.
The action was in support of a group of Wet’suwet’en hereditary chiefs, traditional Indigenous leaders who want to stop the construction of a natural gas pipeline in British Columbia. Their opposition is part of a long-standing dispute over control of 22,000 square kilometres of the yin tah, the Wet’suwet’en name for their ancestral territories.
Solidarity protests started nationwide when the Royal Canadian Mounted Police began arresting Wet’suwet’en protestors for blocking access to construction sites along the route of the pipeline, sparking blockades by other First Nations groups concerned about the rights of Indigenous peoples across Canada. Usually, non-Indigenous Canadians show little more than a passing interest in Indigenous affairs, but as tensions rose between the Wet’suwet’en’s two governing bodies, public attention was piqued by conflicts between hereditary and elected chiefs.
“Usually, non-Indigenous Canadians show little interest in Indigenous affairs, but as tensions rose between the Wet’suwet’en’s two governing bodies, public attention was piqued by conflicts between hereditary and elected chiefs.”
The elected chiefs are a product of the Indian Act, passed by the Canadian Parliament in 1867, originally designed to assimilate Indigenous peoples and still in effect today. Before recent amendments, the Act dictated how Indigenous children were educated, banned cultural and religious practices and determined who was and wasn’t entitled to status as an “Indian”. “For nearly a century, it was effectively illegal to be a First Nations person in a traditional sense,” writes lawyer and Indigenous law expert William B. Henderson in the Canadian Encyclopedia.
The Act also replaced traditional forms of Indigenous government with a democratically influenced model that assigned registered Indians to “bands” and placed them on designated reserves. Every two years, band members elect a chief and council to govern them and their reserve lands, while the Canadian justice system remains sovereign in criminal and civil court matters.
Five of the six elected councils that represent Wet’suwet’en bands on reserves near the pipeline’s route approved Coastal GasLink’s proposals and signed impact-benefits agreements in exchange for annual legacy payments that will total $115m over the next 25 years. The project is tipped to generate more than $60m in construction contracts for local Indigenous businesses.
The hereditary chiefs are part of a traditional system of governance that predates colonial settlement. For thousands of years, the Wet’suwet’en organised their society according to 13 matrilineal houses that sit within five clans. An intricate network of hereditary chiefs and sub-chiefs leads the houses, handling both political and judicial matters through consultation across houses and clans. “The responsibilities of hereditary chiefs are to mitigate and resolve problems within the community situation,” says Adam Gagnon (Dsta’hyl), hereditary Wing Chief of the Laksamshu (Fireweed) Clan.
While hereditary chiefs and the elected councils seem at odds over the economic benefits of the pipeline and the need for environmental protection, their disputes have been spun into irreconcilable conflicts by oil and gas lobbyists who have used aggressive online ad campaigns to frame them as unelected autocrats and pawns for environmental organisations. Seeded by questionable grassroots groups, the ads played on the emotions of Canadians who experienced traffic jams, supply shortages and temporary layoffs during the height of the blockades. They were extremely effective: in a national poll conducted in February 2020, 61% of Canadians surveyed said they disagreed with the protests.
In truth, the hereditary chiefs haven’t always been opponents of the pipeline. In the early stages of construction, The Office of the Wet’suwet’en proposed a route that it felt better protected the environment and culturally sensitive areas in the yin tah. When Coastal GasLink rejected this proposal in 2014, the chiefs took it as a sign that the company was unwilling to work with them seriously.
The landmark Delgamuukw case of 1997 was the first to formally recognise the Wet’suwet’en historic legal order that granted the hereditary chief’s responsibility for the Wet’suwet’en traditional lands. It also concluded that the Wet’suwet’en still have Aboriginal title over these lands based on evidence of centuries of occupation, use and management of the yin tah prior to colonisation. However, the Supreme Court’s decision didn’t address Wet’suwet’en governance today, nor did it resolve the murky relationship between the hereditary chiefs and the elected councils, leaving them exposed to corporate exploitation.
“For nearly a century, it was effectively illegal to be a First Nations person in a traditional sense.”
Canadians like to believe that the conflict between the Wet’suwet’en leaders is about who’s in charge, says Dr. Val Napoleon, an expert in Indigenous law and director of the University of Victoria’s Indigenous Law Research Unit. But it’s actually much more complex. “There’s no intact indigenous legal order anywhere in Canada. They’ve all been undermined and there’s distortions and there are gaps.” When the government of Canada imposed the elected chiefs and councils, it declared traditional forms of government undemocratic and replaced them.
For the Wet’suwet’en, it discredited the ancient traditions of consensus-building among their houses and clans. Napoleon describes the resulting tensions as “a disagreement between ways of doing things that never got resolved and still isn’t resolved according to Wet’suwet’en law”. To illustrate, she suggests imagining that someone has removed all the traffic signs in your city. “That’s the profound disorientation that has happened for Indigenous peoples — the right to be lawful. When our systems are undermined and where Canadian law fails, it creates spaces of lawlessness. That’s where violence happens.”
The ongoing rifts among Wet’suwet’en lend credit to Napoleon’s views. While the dispute has been free of physical violence, tensions remain high on both sides. Some band members say the hereditary chiefs are ignoring their opinions and abusing their powers. Others accuse elected officials of a bias for the pipeline because they hold jobs and contracts with Coastal GasLink. There are open disputes about who can hold the title of hereditary chief.
“In traditional Wet’suwet’en law, the hereditary chiefs are responsible for any harm that comes to house members or people on their lands, regardless of who or what causes the harm.”
Adam Gagnon served as a band councillor in the 1980s and made his own attempt to reconcile the hereditary and elected systems, proposing that each of the five clans appoint two members to the 10-person band council to ensure fair representation — currently, the system favours larger clans. But it was another failing of the governance system that thwarted his efforts; the brevity of council terms. “Two years doesn’t get to give you enough time to make any changes at all.”
For the situation to progress, Napoleon believes the solution must come from within the ranks of the Wet’suwet’en and has reservations about working with the government to create a new Indigenous legal order.
Her experiences with the Gitskan, neighbours of the Wet’suwet’en, show that the government of Canada still expects Indigenous groups to adopt European-style democratic institutions.
“I was invited to one of the meetings to talk about Gitskan law, which was the subject of my dissertation, and the federal and provincial representatives were saying things like, ‘the problem with your society is that it wasn’t democratic. People did not vote for their leadership and therefore, we cannot have this in Canada.’” She went to lengths to explain the Gitskan house system, which, like the Wet’suwet’en system, relies on consensus. “I said, ‘This is more democratic than anything imagined in Canada. It’s intensive democracy.’”
While the Wet’suwet’en deliberate over internal disputes, the Coastal GasLink problem remains. In April 2020, a joint statement released by the two governments and the hereditary chiefs said, “All parties at the table recognize that the differences relating to the CGL project remain.” There is no mention of what will happen next.
But as Delgamuukw shows, the hereditary chiefs are adept at using the colonial legal systems to pursue the interests of the Wet’suwet’en. In February, Chief Warner Naziel (Smogelgem) and Alphonse Gagnon (Lho’imggim) of the Owl House (Medzeyez) launched a constitutional challenge under Canada’s Charter of Rights and Freedoms. If successful, the challenge will arm Naziel and Gagnon with new ways to stop or even reverse projects like the Coastal GasLink pipeline. Lawyer Richard Overstall filed the suit on behalf of the two chiefs. “The remedy sought is for the federal government to have the power to rescind environmental assessment approvals of greenhouse gas-intensive projects in the event Canada will be unable to meet its Paris temperature commitments,” he says.
In traditional Wet’suwet’en law, the hereditary chiefs are responsible for any harm that comes to house members or people on their lands, regardless of who or what causes the harm. The chiefs will argue that they are responsible for the effects of climate change on their descendants. In an interview with The Lawyer’s Daily, Stepan Wood, Canada research chair in law, society and sustainability at the University of British Columbia’s School of Law, neatly summarises the chiefs’ dilemma. “You can understand these chiefs must feel that they are really between a rock and a hard place because they are not the ones in their view that are engaging in the harmful behaviour or making the decisions (that) are really doubtful or dubious … but they bear responsibility.”
Overstall says their strategy is in keeping with Wet’suwet’en historical values. “The house groups have always had a strong connection with their past. They’ve also got a huge connection with the future. The impetus for a house group is to keep its existence going, and to keep its status high, so you’re always looking to the future.”
As the Wet’suwet’en seek consensus to reconcile their ways of governance and resume control over their yin tah, non-Indigenous onlookers are anticipating a protracted and chaotic conflict. But Napoleon says the Wet’suwet’en house system provides an important foundation for addressing such challenges. In spite of their differences, “there’s still amazing communication going on between them all because it’s all the same families,” she says.
When Napoleon describes her work with other Indigenous groups, she hints at what might be ahead for those who accept the challenge of rebuilding the Wet’suwet’en legal order. “These are very intensive, iterative processes where lots of work takes place around kitchen tables. This is the work that’s necessary for rebuilding law. It’s not sexy work like the big self-determination and self-government projects. It’s people finding ways to act on what they care about, and figure out what their obligations are to one another.”