There has been a lot of confusion in the media and even within the B.C. government about the place of Wet’suwet’en Indigenous law within the Canadian system. Even as the RCMP occupy a bridge on the Morice River, Premier John Horgan blithely talks about a “familial dispute”. In fact, the discord between hereditary leadership systems and colonial governance systems is at the heart of the legal uncertainty that exists on unceded territory in B.C.: a schism that is unfolding dramatically in northern B.C. today.

Ever since the ground-breaking Supreme Court of Canada judgment in R. v. van der Peet , the recognition, by Canadian common law, of “the ancestral laws and customs of Aboriginal peoples” has run through Canadian legal history like a “golden thread”, as Justice Beverly McLachlin put it.

Since that precedent-setting judgment, multiple court decisions have affirmed this principle and clarified how it can be applied in specific cases. In Pastion v Dene Tha’ First Nation, the Federal Court stated boldly: “ Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land .” (emphasis ours) In other words: hereditary leadership, as upheld in Wet’suwet’en territory, is a legitimate form of governance and should not be overlooked when decisions are being made affecting territories under their jurisdiction.

Yet the golden thread seems to fray when confronted with deeply held colonial assumptions about the legitimacy of elected leadership, the “division” within the Wet’suwet’en community, and the ongoing burden on Indigenous Nations to prove title in order for Nations and their lands to be treated with respect by Canadian institutions. Take the Coastal Gas Link process. CGL, Canada and BC have treated elected chiefs and band councils – a form of governance created by the Indian Act – as primary negotiation partners. Coastal GasLink has signed benefit agreements with all 20 elected band councils along the 670-kilometre pipeline route, and much of the media coverage has interpreted this as legitimizing CGL’s claims. But the Wet’suwet’en people govern themselves as Clans and Houses (not bands), make decisions in their Feast Houses, and are led by Hereditary chiefs who draw their legitimacy neither through elections, nor through birthright alone (as in European monarchies) but through the Feast House process.

In fact, the Wet’suwet’en are one of the few Indigenous Nations in Canada whose hereditary governance system was explicitly affirmed by Canadian courts. In 1997, the Supreme Court of Canada in Delgamuukw described the system of Clans and Houses with Hereditary Chiefs as “the fundamental premise of both the Gitksan and the Wet’suwet’en peoples.” Subsequently, the BC Supreme Court held in Canadian Forest Products Inc v Sam that “the Wet’suwet’en occupation and use of land is organized by the clan and house system upon which the law and essential social structure is ultimately based.” The BC Supreme Court went on to say that “each Wet’suwet’en chief has rights and responsibilities specific to the particular territory over which that chief is given a duty to protect. The rights and responsibilities are confirmed, coordinated, and directed to the common good, in other words, governed, through the feast,” which is “central to Wet’suwet’en society and government”.

Since those Hereditary Chiefs have clearly expressed opposition to the CGL project, this should presumably be given significant weight as an expression of Wet’suwet’en governance. This is all the more pressing in light of the existing legal recognition of that system, including in the Supreme Court of Canada decision in Tsilhqot’in, where the Court held that the organization of a Nation into bands as a result of the reserve allocation process and the Indian Act “does not affect the identity of the Nation as the holder of rights.”

Unfortunately, the BC Supreme Court on Dec 31 granted an injunction against members of the Wet’suwet’en nation who have been stewarding and protecting their territories from Coastal Gas Link’s LNG pipeline. This is perhaps not surprising. According to West Coast Environmental Law and the Yellowhead Institute, injunction hearings are a notoriously difficult forum for Indigenous peoples to have their laws, title and rights upheld. (https://yellowheadinstitute.org/2019/11/14/injunctions-by-first-nations-results-of-a-national-study/). The Wet’suwet’en are contemplating further legal challenges to ensure respect for their land and governance.

Sign a letter to Coastal Gas Link urging them to respect Wet’suwet’en law: https://raventrust.com/unistoten/

You can also read the Open letter to Prime Minister Trudeau and Premier Horgan by academics and lawyers across Canada here.