Amber Bracken: The difference between Wet'suwet'en hereditary chiefs and elected chiefs is rooted in Aboriginal title, an issue that the Government of Canada continues to leave unresolved

Amber Bracken is an award-winning photojournalist based in Edmonton. Much of her reporting focuses on issues affecting Indigenous people. She’s spent months, over multiple trips, covering the interpretation of Aboriginal title rights inside Wet’suwet’en territory.

Ahead of the impending RCMP enforcement of Coastal GasLink (CGL) pipeline’s temporary injunction in late 2018, the Wet’suwet’en held an important feast, to decide what to do next.

The bahlat, or potlatch in English, is the seat of their ancient government. That it exists today is a credit to the Wet’suwet’en resisters who were jailed for protecting it during the potlatch ban that lasted from 1884 to 1951, even as their regalia was burned in front of them.

Bahlats are open to everyone from the nation. The proceedings that day took hours of protocol and discussion before the hereditary chiefs announced the decision, on behalf of the five clans—they would not leave quietly, they said. They would block pipeline workers.

Decisions made like this have underpinned the Wet’suwet’en’s hereditary chiefs decade-long stand against all pipelines—in their remaining culturally viable land. It’s only a portion of their total unceded territory equalling roughly the size of New Jersey.

Conversely, of the five Wet’suwet’en elected band chiefs, only the Hagwilget Village Council declined to sign benefits agreements with the LNG pipeline, citing that it was not their place to make decisions about the territory.

The opposing positions of the two sets of chiefs has been represented by B.C. Premier John Horgan and in the media, as a fight within the nation between the equal actors of hereditary chiefs, who defend the land, and the band chiefs, who seek escape from poverty. Premier Horgan told the CBC he doesn’t think “a handful of people can stop progress and success for people who have been waiting for a break like this for many, many years.”

But this simplification obscures the fact that both sets of chiefs are on the side of their people, working against a colonial system that seeks economic certainty and the surrender of Indigenous land.

The Wet’suwet’en are not a nation divided, they are a nation with differing opinions on the best route to a better future after history of oppression. The band councils have sought opportunity, and funding, where they can find it. But based on Wet’suwet’en and Canadian law, it’s ultimately the hereditary chiefs who have jurisdiction to the territory, and they have been clear about their aim—to assert self-governance over their land and demand a nation-to-nation relationship with Canada. It’s a move that would benefit all Wet’suwet’en.

Each set of leaders has unique jurisdiction, in the same way that municipal and provincial governments do. The band chiefs, who were imposed by the Indian Act, govern their reserves, while hereditary chiefs predate Canada, and govern the entire Wet’suwet’en territory. It’s worth noting that they are not anti-industry and have long held logging agreements.

Divide and conquer is a classic strategy that’s been used effectively to rule Indigenous lands throughout Canadian history. In the 1870s, Cree people were intentionally scattered across multiple reserves to prevent them from organizing. In the contemporary politic, just the appearance of fracture can undermine public support for grassroots movements.

By lumping Indigenous people together and by funding pro-pipeline factions within the Wet’suwet’en nation, B.C.’s government and gas industry have caused confusion about who has say. Well-meaning Canadians don’t want to infringe on Indigenous rights. But when the determination of whether pipeline work should continue has been represented as a democratic exercise, “majority rules” becomes an easy conclusion.

A key point that project proponents emphasize, is that 20 elected band councils signed benefits agreements, a phrasing that relies on Canadians’ social conditioning—one that assumes democratic systems are fundamentally more fair.

While talking about benefits agreements, duress is inherent in the process—First Nations can’t actually say no to any project in Canada. In addition, most councils are cash-strapped, and some reported that they were told the project would go ahead with or without their consent—they might as well get on board for a payout. Leaked examples of Coastal GasLink agreements show evidence of large provincial subsidies to get First Nations on board, attempts to muzzle pipeline dissent, and to limit Aboriginal rights.

While there are communities who are excited for LNG development, like the Haisla of Kitamaat Village, there is no pan-Indigenous monolith; each independent nation has rights that need to be respected. It’s messy and difficult, but important.

This is not an equation where Haisla rights, plus band chiefs, minus an implementation strategy for the United Nations Declaration on the Rights of Indigenous Peoples, justifies the trampling of the Wet’suwet’en hereditary chiefs. Their voice is the one that counts for the 190 kms of pipeline proposed for their territory.

Their position has been supported by their system of bahlat as well as a survey that was reported to me by Chief Knedebeas (Warner William), as well as Chief Howihkat (Freda Huson), who was on the council of Witset (the largest Wet’suwet’en community) while the survey was being completed. It was conducted by CopperMoon Communications, a company that doesn’t seem to exist anymore. The surveyed stated that 83 per cent of Witset members (its population is 2,000 among the greater Wet’suwet’en population of 5,000) were against the pipeline.

The Wet’suwet’en Matrilineal Coalition (WMC) was formed in 2015 by Gloria George, Darlene Glaim and Theresa Tait-Day. WMC was formed expressly to sign a benefits agreement on behalf of the clans, after the hereditary chiefs would not, according to Glaim’s resignation letter two years later. At the time, Glaim held a hereditary title but notes in the letter that she would consider renewed involvement, if her clan wanted her to, saying that “clan organization with the current resources has not worked thus far.”

The coalition never brokered an agreement, but have petitioned for the project and bolstered the public image of collaboration between Wet’suwet’en and the Coastal GasLink pipeline.

Public support matters, because it creates social license in the current climate of reconciliation, where Indigenous rights are often discussed. Premier Horgan recently said reconciliation discussions with the hereditary chiefs are ongoing, but Wet’suwet’en opposed to the pipeline say reconciliation is dead. This national outcry follows the arrests of 28 people from Wet’suwet’en camps.

Chief Howihkat was dressed in her regalia, conducting ceremony with six family and supporters when RCMP came to remove them from her home, just like when police came for her ancestors.

The reverberations of public opinion have been felt across the country. The hashtags #reconciliationisdead, #shutdowncanada and #wetsuwetenstrong have been trending on social media, while the Gitxsan, Mohawk, other Indigenous and non-Indigenous protestors occupy bridges, ports, railways, offices, radio stations, and the B.C. Legislature in support of the Wet’suwet’en. More than 50 protestors have been arrested so far, and business leaders are alarmed about their inability to move commodities by rail or sea—along with the potential harm to the Canadian economy.

In response, Coastal GasLink announced that work would resume in the area this week, also highlighting the benefits and the “return to work of many members of the Wet’suwet’en community,” who the CBC reported numbered approximately two dozen. CGL’s official Twitter feed has been posting pro-pipeline Wet’suwet’en voices, including a hereditary chief, and an employee who’s been used extensively in their marketing, to drive the point home.

Jody Wilson-Raybould recently wrote in the Globe that “reconciliation requires transitioning from the colonial system of government imposed on First Nations through the Indian Act, to systems of Indigenous governance,” and that it’s up to each nation to clarify the roles of the two systems.

The Wet’suwet’en people have already put forward their hereditary chiefs to speak for the territory, during the 1997 case Delgamuukw v The Queen. They were also recognized by the Supreme Court of Canada as the representative of the collective land rights holders in that decision, the first comprehensive account of Aboriginal title in the country.

But after over a decade and millions spent in court, even though their law is older than Canadian law, that case fell short of establishing the boundaries of where their title applies. So it’s business as usual with government, RCMP and gas industry until they go back to court.

If Aboriginal title is established, the Wet’suwet’en nation will gain a critical new power. Developments in their territory will require their consent rather than the murkily defined consultation that’s required now. Band councils work hard to make the most of limited resources, and the pipeline has been framed as a salvation for an impoverished nation.

In contrast, Aboriginal title would empower the Wet’suwet’en to retain culturally significant territory or to negotiate projects in their territory, as true equals, rather than brokering from desperation created by the Indian Act. The power to say no could change everything.

CORRECTION, February 19, 2020: A previous version of this story stated that The Wet’suwet’en Matrilineal Coalition (WMC) was formed in 2015 by Gloria George, Darlene Glaim and Theresa Tait-Day, with $60,000 each in funding from LNG Canada, Coastal Gaslink, and the Provincial Ministry of Reconciliation and Relations. In fact, LNG Canada did not and has not provided the WMC with any funding.