GORDON WILSON – The question of who has legal authority to speak, on behalf of an indigenous Nation, is one that requires a lasting resolution in order to maintain peace order and good government

Gordon Wilson

Customary law must not be permitted to subjugate statutory authority

The media is reporting that Carolyn Bennett, Federal Minister of Crown-Indigenous Relations and Scott Fraser, BC Minister of Indigenous Relations and Reconciliation, have reached some form of accommodation with five men who assert their authority as hereditary chiefs by way of customary Wet’suwet’en law.

No one seems to have noticed that Wet’suwet’en hereditary authority is matriarchal.

Where are the women?

And how is this customary law when the leaders are all men?

The governments of Canada and British Columbia should keep top-of-mind that the authority of these five hereditary chiefs is disputed by the hereditary chiefs of other Wet’suwet’en houses as well as duly elected Chief and Council.

No details have been released on what this accommodation might include, but we are led to believe that the terms will reference much more than an agreement on a pipeline right-of-way.

By branding the now well established and generally supported model of democratically elected Chiefs and Council an imposed “colonial authority” not in sync with hereditary law, the strings of white self-contrition are plucked

According to at least one of the hereditary chiefs, it sounds like what has been in discussion is the underlying issue of rights and title and if that is true, then I fear that the well-intentioned Ministers of the Crown may have just opened Pandora’s box because there is established jurisprudence on that question tied to statutory law in Canada, and not the customary law as interpreted by someone who claims authority by virtue of his/her bloodline.

At the heart of this conflict are those for whom customary law, oral by tradition and often self-asserted, is permitted to subjugate statutory law that has established democratically elected chiefs and Councillors in their own communities.

Who benefits through such subjugation? Those born into leadership by virtue of ancestry.

Who loses? Those for whom democracy has greater appeal than a “hereditary claim” to govern, which is basically aristocracy, no matter how it is called.

Given years of negotiations and the setting up of a tripartite treaty process that (although costly and slow) has actually been successful in getting treaties signed, why would representatives of the federal and provincial government now sit down with this minority group who do not believe in treaties and refuse to participate in meaningful treaty discussion, to reach whatever accommodation has been agreed to?

I suspect the reason is because of the collective guilt for the manner by which far too many indigenous people were treated for far too long, by the governments of Canada.

Hereditary customary law can both be respected, and incorporated, into modern statutory law that has standing with the courts of Canada -- how that’s achieved is up to the Wet’suwet’en to figure out

By branding the now well established and generally supported model of democratically elected Chiefs and Council an imposed “colonial authority” not in sync with hereditary law, the strings of white self-contrition are plucked.

It appears to have led to some members of the federal and provincial governments to actually contemplate that perhaps, there is a practical way to turn the clock back a hundred and fifty years, and still have a governable country.

The great irony in all this is ... those collective voices blockading railways, driveways, government buildings and Canadian ports in support of the hereditary chiefs ... are the very same who would not tolerate aristocratic rule in non-indigenous society.

By supporting a handful of hereditary chiefs, these activists are in fact speaking out against the majority who support a system that gives every member of the Wet’suwet’en people an equal voice and vote, while at the same time respecting the role of the hereditary chiefs and clan elders.

The interface between and transition from customary to statutory law is neither new nor unsolvable.

It has been the subject of many legal and political battles worldwide as modern nation states emerge from colonial rule and find themselves confronted by tribal or regional authorities that are either reluctant or refuse to acknowledge the complex jurisdictions of modern governance, and only accept superior court rulings from which they stand to benefit.

In progressive countries, such as Canada, these questions are solved through long, hard-fought negotiations that lead to treaties. In less progressive countries tribal or indigenous authorities have simply been assimilated, marginalized or outlawed altogether.

It was for the benefit of indigenous populations in those less progressive countries, ones that don’t respect human rights let alone indigenous rights, that the United Nations Declaration on the Rights of Indigenous People (UNDRIP) was written and signed, and that deserves a conversation all on its own.

The question of who has legal authority to speak on behalf of an indigenous Nation is one that requires a lasting resolution in order to maintain peace order and good government both within the indigenous community and the nation as a whole.

It is essential in order for reciprocity to be established through meaningful dialogue and reconciliation and the way forward in this case can only be decided by the Wet’suwet’en people as a whole and not by those who profess nobility in the cause.

I sincerely hope that whatever was agreed to over a weekend of discussion -- to permit the construction of a pipeline that already has the support of the overwhelming majority of First Nations along the corridor -- won’t undermine, if not terminate and cause to come crashing down around us, years of hard work at established negotiating tables that have signed resource agreements between proponent companies and First Nations, and more importantly established modern treaties creating an equal partnership with Canada.

Hereditary customary law can both be respected, and incorporated, into modern statutory law that has standing with the courts of Canada -- how that’s achieved is up to the Wet’suwet’en to figure out.

If governments start to make accommodation with every dissenting voice within every indigenous community, not only will the rights and collective interests of those within the community be compromised, it will subject those communities to years of internal conflict and dysfunction.

The net result will be a nation that is ungovernable, whether indigenous or Canada itself.

Gordon Wilson is a writer and business consultant who served as an elected MLA from 1991 -2001.  During that time, he held several cabinet posts including Minister of Forests, Aboriginal Affairs and Minister of Finance. He has consulted widely matters pertaining to the Canadian resource economy, and the Canadian Constitution. He lives on a small sheep farm in Powell River.