Canada versus First Nations: Whose land is it anyway?

Understanding the history of First Nations governance provides crucial context to the current conflict between TransCanada and the Wet’suwet’en First Nation over pipeline plans in northern BC



News of the RCMP’s dismantling a First Nations camp blocking the construction of a liquified natural gas (LNG) pipeline in northern BC went mainstream last week.

Dozens of solidarity rallies in support of members of the Wet’suwet’en First Nation took place across the country following 14 arrests by the RCMP on Monday, January 7. The RCMP were enforcing a December provincial court injunction ordering TC Energy (formerly TransCanada) and Coastal GasLink access to Wet’suwet’en territory. 

After the arrests, the hereditary chiefs of the Unist’ot’en and Gidimt’en clans agreed to allow TC Energy construction crews access to the territory to conduct for preliminary work on the proposed pipeline. In a post on the camp’s website, the chiefs say the decision was made to prevent further arrests, and that it does not mean they consent to the pipeline.

The Unist’ot’en are one of two groups that make up the Gilseyhu Clan which, together with the Gidimt’en Clan, comprise two of the five clans that make up the Wet’suwet’en First Nation.

Understanding the history of First Nations governance provides context to the current clash. 

Before first contact 

Before Europeans made their way across the Atlantic Ocean, North America – or Turtle Island – was an assemblage of sovereign nations, each with their own unique cultures, laws and governance systems. These nations had jurisdiction over the lands they occupied. Indigenous authority was, and is, derived from responsibility to care for and share the land with the natural world. These customs have endured for millennia.

The earliest contact with European settlers did not extinguish this sovereignty. Nations often continued on as they always had. There were many nation-to-nation treaties in place before the settlers arrived.

When the settlers established trading posts, they asked to do so and were granted permission with an understanding of sharing and mutual benefit. Early relationships between First Nations and Europeans centred not only around trade (usually goods like furs) but knowledge of the land, without which the settlers likely would not have survived.

The earliest treaties were peaceful alliances. The 405-year-old Two Row Wampum Treaty between the Haudenosaunee and Dutch nations was the first such agreement. 

The two purple rows of the Wampum belt represent two boats – one, a Haudenosaunee canoe, the other, a European ship. The rows, like the boats, never cross paths, symbolizing a mutual understanding of autonomy.

This did not last. 

The defeat of the French at the hands of the British following the Seven Years’ War and the Royal Proclamation of 1763 forever changed governance structures in North America, which until then, Brain Slattery writes in the 2015 book, Keeping Promises, was “a corpus of customary law that was neither wholly Indigenous nor European but a kind of inter-societal law that bridged the gap between Aboriginal and English legal and political systems.” 

Through the Proclamation the British Crown asserted sovereignty over much of North America promptly carving up the continent, as well as the Caribbean. The document states explicitly that Indigenous peoples reserved rights to all lands not ceded by or purchased from them.

Then, as now, First Nations differed in their opinions of the colonizers. Some allied with the British, while others allied with the French. Sometimes this ended in all-out war. For example, Indigenous peoples previously allied with the French who didn’t trust the British, led by Ottawa war chief Pontiac, launched Pontiac’s War, which saw a number of forts fall to Indigenous warriors. 

As more settlers arrived and the Crown’s power consolidated, other alliances that had helped keep the peace between First Nations and the British also fragmented. The American Revolution (1763-1787) and the severing of the massive British colony accelerated the process of subjugation. Those loyal to the Crown fled north and, ultimately, needed new territories. They took to writing treaties with First Nations under the framework laid out in the Proclamation, primarily in southern Ontario. 

When Canada came into existence almost a century later through the Constitution Act in 1867, an extensive overhaul of Indigenous governance would follow. Parliament asserted jurisdiction over First Nations and systems that were in place would be subverted, first by “Indian agents” appointed by the Crown to oversee reserves and later elected band councils and chiefs created under the Indian Act

In an article published in Canadian Public Administration in December 2018, Indigenous scholar Terry Poucette writes that there were two primary forms of Indigenous governance. One was more structured and based on rank and hierarchy. The other was fluid and more “egalitarian.” Family played a central role in many First Nations political structures. Nations would often be comprised of clans, each with their own way of organization.  

Traditional forms of governance did not end in 1867. Indigenous peoples never lost a war to the Crown. There was no dramatic conclusion to a long conflict that resulted in the handing over of a country. 

“Unlike the United States, where Indigenous peoples were effectively quelled and subordinated by deliberate military actions, in Canada that was never the case,” says Brian Noble, a political anthropologist at Dalhousie University who specializes in Indigenous-settler relations. “Indigenous peoples have not surrendered their sovereignty to the Canadian government.” 

Instead, what transpired was a slow and systemic process of conquest. The results of which are still unfolding today. 

The extinguishing of Indigenous rights

During a press conference on January 9 following the arrest of Unist’ot’en land protectors by the RCMP, BC Premier John Horgan offered that, “The challenge for governments, federal and provincial, is determining how we bring together the historic band council model [of governance] with… the emerging hereditary model that’s very much manifesting itself on Wet’suwet’en territory.”

Hayden King, executive director at the Yellowhead Institute at Ryerson University and a member of the Beausoleil First Nation, says statements like these erase thousands of years of history. He says the elected band council system that was imposed under the Indian Act and designed to mimic the Canadian system, ignores traditional First Nations governance models that were in place before.

“Those who say, ‘Hey, but what about the band council? They all approved this,’ are really using that as an alibi to justify this intervention.”

While it is true that the elected chiefs and band councils do have authority, their powers are strictly defined by the Indian Act and are generally confined to issues on reserves themselves. What’s in contention for the Wet’suet’en are the roughly 22,000 square kilometres of traditional territory over which the elected councils have no jurisdiction.

Karla Tait is a member of the Gilseyhu Clan of the Wet’suwet’en First Nation. Her family has a long and deep connection to the land. She’s also the director of services at the Unist’ot’en Healing Centre, which was constructed at the site of the protest camp in 2015 to offer holistic and traditional healing to the community. 

She says that Canadians need to understand that authority in the Wet’suwet’en First Nation ultimately lies with the hereditary chiefs. Band councils are elected every two years, while hereditary chiefs are groomed for their roles from a very young age. 

As prospective chiefs become older, they’re given more knowledge and responsibility and inherit different names. At its root, Tait says, the Wet’suet’en government structure is based on the consent of, and is informed by, community members, while the onus of making decisions lies with the hereditary chiefs. 

“There’s a basic amount of respect that Indigenous peoples need to be shown, [that] our governance system needs to be shown,” she says. “We can’t continue to be considered inferior because we’re not assimilated. Because our life-ways and our beliefs and our governance structures are different than Canada’s.” 

Tait points to the social and economic situations on reserves that can make the decision of allowing a pipeline complex and difficult for band councils. It’s been reported, for example, that Coastal GasLink and TC Energy have awarded $620 million in contracts to First Nations businesses and contractors along the proposed pipeline route. But, Tait says, First Nations should not be forced to balance their environment and traditional territory with their social and economic well-being.

“We’ve been confined and stripped of so many liberties and rights since our contact with western settlers that some people have this perception that we’re trapped and there’s nothing we can do to resist,” Tait says. “I don’t really fault our council leaders for making really difficult decisions. They are under duress, facing what seems like insurmountable challenges in their communities.

“I’m hopeful that with the spirit of reconciliation amongst individual Canadians and the overwhelming support we’ve seen from brothers and sisters across the world… that there’s a change in our social climate that will really hold Canada accountable [for] ensuring that there is that basic respect and acknowledgement that our governance systems are legitimate,” Tait says. 

False choices under the Indian Act

The question of who holds authority to make decisions and where that power comes from is central to contemporary Indigenous issues, says Dayna Scott, an associate professor at both the Osgoode Hall Law School and York University’s Faculty of Environmental Studies. 

Scott, who has worked extensively on the issue of free, prior and informed consent, sees these issues at play across the country. She also sees how the weight of systemic inequities and social and economic issues on reserves complicates decisions on issues like pipelines. 

It would be different if traditional leaders had a veto for what takes place in their communities, but that’s not what happens. Scott says the schism between traditional and band council government models has set up a “false choice” for Indigenous leaders.

“They’re being asked to choose whether or not they want to sign a deal and get some benefits for their people for a pipeline that’s going to go through whether or not they agree to it,” Scott says. 

Scott says this is an issue across Canada, as extractive industries look to expand in Indigenous lands, including in Northern Ontario’s Ring of Fire, the massive chromite mining and smelting development project that will impact nine First Nations. 

The Ford government has pledged to open up the area to development. That means roads will have to be constructed through lands claimed by Indigenous peoples whose leaders say that proper consultation and accommodation have yet to happen.

“We’re going to have to wonder and look a little bit closer at whether or not consent for those roads is really there,” Scott says. 

Supreme Court’s foundations for Indigenous title

For the Wet’suet’en, the question of jurisdiction over their traditional territory is more clear-cut.

In 1997, after years-long proceedings, the Supreme Court of Canada ordered a new trial in Delgamuukw v. British Columbia, a case concerning Indigenous ownership over traditional lands. 

The case was never retried, but the Supreme Court’s decision laid out the foundations for Indigenous title in Canada, and on Wet’suet’en territory in particular. Most significantly, the court found that the provincial government had no right to extinguish Indigenous peoples’ rights to their ancestral territories and affirmed that title is recognized as an “existing Aboriginal right” in the Constitution.

The court also accepted that First Nations’ oral history must be treated as equal to other types of evidence. Some scholars and other legal observers point out that even First Nations who may have signed treaties with the Crown have not surrendered title to their land. 

Treaties are meant evolve and reflect the contemporary goals of the signatories, says Signa Daum Shanks, an associate professor at Osgoode Hall Law School. 

“A better, more accurate understanding would be [that] a treaty is understood, and was negotiated in good faith, [to be] living documents, or being a document that will be a tool for future relationships.”

Rethinking Canada’s relationship to First Nations 

Jeff Corntassel, a faculty member of the Indigenous Studies Department at the University of Victoria and a member of the Cherokee Nation, says that what’s happening on Wet’suet’en territory is an act of Indigenous resurgence. 

“It’s a turning away from the state, but it’s also revitalizing and regenerating those connections to territory, language and community that need to happen in order for future generations to thrive,” he says. 

Corntassel says it’s important to step away from the legal aspects and remember that these are people exercising autonomy in the face of acute pressure. 

“These are real acts of resurgence going on and they will be long remembered. They will not be forgotten.”

For Tait, the hope is that what’s happening with the Wet’suet’en First Nation will force Canadians to rethink how they want their government’s relationship with Indigenous peoples to look.

“The path forward is some deference for the fact that our people have maintained and managed these territories for millennia and we’ve done so in a responsible way that ensured that they were here intact for the current generations,” Tait says. “That’s our charge for the future generations – it’s built into our Anuk Nu’at’en, our Wet’suet’en law.”

@nowtoronto

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