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.
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