In 1986, in preparation for the Delgamuukw land rights trial that would be held in the Supreme Court of British Columbia, an all clans feast was held in in Wet’suwet’en territory, in the northwestern central interior of the province. The feast was organized to help establish that there were no overlaps in territorial claims between the Gitskan and Wet’suwet’en, who were the key plaintiffs; and further, to ensure no overlap of territorial claims between the Gitskan and Wet’suwet’en’s tribal neighbours the Babine, Nisga’a and Carrier. The chiefs representing the various hereditary groups or “Houses” in the Gitskan and Wet’suwet’en nations, verbally marked out their territories during the feast, describing the bounds of each of their territorial boundaries, and demonstrating how those boundaries bumped up against the territories of the House chiefs to the north, south, east and west. They described the features of their territories as unique territorial markers that were echoed in the symbols and patterning of their chiefly robes, masks, and in crests on the walls of their lodges and feast houses. For example, if there was a mountain top where white ptarmigan – a kind of bird – lived exclusively, the chief whose house included that mountain would have a crest of white ptarmigan feathers.

Wet’suwet’en law is not conducted on the barricade. Wet’suwet’en authority over land is properly exercised in the Feast House. It is there, in a public forum, that decisions about land use are made, and the boundaries of House territories are affirmed. From a practical and policy-oriented perspective, what is needed now is not patience but action. Not military action nor police action, but traditional Indigenous action in the form of another all clans feast.

It is entirely likely that, given the opportunity to sit down in traditional format and do the business of law and authority that these nations have conducted for millennia, a solution can be reached.

Not a chaotic, lawless place

As anthropologists Richard Daly and Antonia Mills have documented (at the invitation of the Gitskan and Wet’suwet’en), Wet’suwet’en territory is divided into 13 regions, each headed by a House and led by a Head Chief. For example, the House of Namox is led by a chief whose name is Namox and who exercises authority over the Wet’suwet’en territory whose place name is also Namox. Upon Chief Namox’s death, his (or her) title, crests, robes, name and the authority of their house will pass to another Chief who will themselves become Namox. The House of Namox has existed since the beginning of Wet’suwet’en recorded history, and throughout the House of Namox has belonged to Chief Namox. Chiefly titles, like the lands they govern, endure eternally, according to Wet’suwet’en law.

The anthropologists who lived among the Wet’suwet’en witnessed an active, robust, complex, and public legal system that took place, as it has for thousands of years, in the feast house. Feasts are highly regulated in form: conventions govern matters such as where each clan will sit in relation to each other, the order in which speaking is to be done, the processes associated with the transfer of ownership of land resulting from the death of a chief, the nature of burials, and the places in one’s territory where food is gathered to be served at the feast. This is not a chaotic or lawless place. This is not an outdated system for the display of wealth as Western anthropologists of the 1960s claimed. No, this is a place of law, a parliament or legislature: a public venue for the assertion of law and a legal order that governs everything from marriage to trespass, and from access to territory and the ending of interpersonal conflicts.

The Wet’suwet’en have never ceded their legal interests in their homelands. No Chief Namox has ever signed a treaty with the Crown, and neither has Chief Smogmolen or any of the other 11 chiefs that make up Wet’suwet’en territory. Further, no act of federal or provincial Parliament has ever purported to explicitly extinguish Wet’suwet’en title in British Columbia, and common law dictates that rights and title that have not been explicitly extinguished by an act of Parliament remain as existing rights in Canadian law.

Parallel systems of government

What the federal and provincial governments have done, however, is to create a series of Indian reserves within British Columbia. In Ontario and across the Prairies, Indian reserves were set aside as part of the treaty negotiation process. In the north and central BC, no treaties were ever signed, and the reservations that were created simply carved out an administrative territory on which Indigenous people were to live until they were assimilated into the broader Canadian culture, and the Indian reserves themselves could then be added to the Crown’s holdings.

To govern Indian reserves, the federal Crown created what is known as the band council system. A federal legislative instrument nearly as old as Canada, known as the Indian Act, sets out the nature, size and administrative powers of the band council and chief system. Elections are to be held every two years (although some bands have had the interval extended), and the administration of these elections is also set out in the Indian Act.

And so, in many First Nation communities, there exists two parallel systems of government. One system is thousands of years old and is grounded in the traditions of particular Indigenous communities. The other system is imposed, based in Western political structures, and serves the purpose of acting as a financial and fiduciary conduit between the community and the federal Crown, which ultimately administers these First Nation communities.

One thing to note is that the territories governed by these parallel legal orders does not extend over the same space. The 13 houses of the Wet’suwet’en nation comprise the entire 22,000 square kilometres of their traditional territories. The band councils’ administrative reach is much, much smaller, covering only the area encompassed by the five Indian reserves that exist within Wet’suwet’en territories. This is an important point because it suggests that even where we understand band councils to have the authority to authorize a pipeline, that authority may well end at the reservation boundary.

By 1997, the Delgamuukw case had reached the Supreme Court of Canada, and the claim had been described by the Court as about “Aboriginal title and self-governance.” At no time did the Court reject the standing of the many Wet’suwet’en and Gitskan chiefs who were appellants in the case. This demonstrates that the Supreme Court, and so the law of Canada, regards the House Chiefs, not the band council chiefs, as the proper claimants for a court battle, and ultimately the proper authority to govern Wet’suwet’en traditional territories.

Seventeen years later, the Supreme Court affirmed in the Tsilhqot’in case Aboriginal title over traditional territories; and that the governance of those territories is not based in the Indian Act’s elected band council. The Court speaks of the Tsilhqot’in nation’s governance and authority over title lands, not the band council or Indian Act chiefs.

The Coastal GasLink project

And so, into this mix of ancient and western legal orders comes a gas company wanting to build a pipeline.

In some sense, Coastal GasLink Pipeline Ltd. just did what resource companies have been doing since Aboriginal title was affirmed by section 35 of the Constitution Act 1982: resource companies apply to the province for permits to develop a project, find the objecting Indigenous communities, negotiate an agreement for the project to proceed, and then build the infrastructure. What has changed is a general awareness of the imbalance of power in these negotiations.

The Indian Act makes it virtually impossible for Indigenous communities to raise any income of their own through taxation – which is what all other governments do to function. Instead, Indigenous communities depend almost entirely on transfer payments from the federal Crown. Resource companies offer a variety of incentives in exchange for consent to operate on Indigenous traditional territories, and some incentives are always better than none, particularly when one’s government is unable to raise revenues in any other way.

So, band councils aren’t the bad guys. Band councils are the ones through whom all the money flows and so they have an incentive to agree to increased revenues, but the traditional laws of Indigenous people concerning land is not about money. Traditional Wet’suwet’en laws concern the relationship of the people to the land, and the land to the people. A duality, incapable of being understood in monetary terms.

We need ceremony again

As an Indigenous person and legal scholar, I support the Wet’suwet’en hereditary chiefs in their claim to ownership and governance of their traditional territories. I also support the Indian Act band council chiefs as they act to improve the lives of their citizens, even as their authority to govern beyond the boundaries of the Indian reservations must be with the consent of their citizens, some of whom may be both band council and hereditary chiefs. Jurisdiction is in these situations not easy.

RCMP officers join hereditary chiefs and supporters as they walk toward Unist’ot’en camp near Houston, BC, on January 9, 2019. THE CANADIAN PRESS/Chad Hipolito

Determinations take time. Processes are required. And so, given that there is a complex backstory in Wet’suwet’en territory, I cannot help but feel unsatisfied with the cries of those on the barricade elsewhere in the country as they claim to be exercising “Wet’suwet’en law.” It is not enough for protesters to shout about Wet’suwet’en law. Law exists in action, and Wet’suwet’en law takes form in the Feast.

Skit’den (Andrew George) is a Wing Chief of the Gidimt’en, Grizzly house, of the Wet’suwet’en Bear Clan. He is currently trying to assemble an all-clans meeting, which properly conducted would take place as a feast to allow the Chiefs to speak and make their positions known.  Skit’den worries about youth on the barricades and in protests across the county – acting without coordination, and without the explicit authority of a consensus of the Wet’suwet’en hereditary chiefs, risking their personal liberties for a cause they may not fully comprehend.

We can imagine a vibrant and majestic feast, a ceremony with the prime minister and premier and head of Coastal GasLink as invitees but not participants. We can imagine the House chiefs marking out their territories, and we can marvel at memory empowered by oral traditions. We can imagine witnessing the process of Wet’suwet’en Indigenous law-making.

For my own part, I don’t make lightly the suggestion that the Wet’suwet’en people host an all-clans Feast. These are complex and expensive ceremonies. A lot of travel would need to be undertaken by the eldest of chiefs. And an all-clans Feast would involve all the relevant clans who make up not just the Wet’suwet’en nation, but might include all the Gitskan, Babine, Nisga’a and Carrier nations.

In demonstrating the actual and ceremonial practices of Wet’suwet’en law, by engaging traditional Indigenous authority in traditional manners over traditional lands, the Wet’suwet’en chiefs will be making the case for their ownership and jurisdiction of their traditional territories. And the Wet’suwet’en would be doing this not in the settler courts and or boardrooms, but in their own Feast houses, where the laws of their ancient lands are properly engaged, and contemporary legal issues appropriately managed and resolved

Some nations genuinely want or will accede to a pipeline if the terms are right. This is an opportunity not for law enforcement, but for law-making – and the chance for Canada to meaningfully participate by funding and encouraging these discussions, and making clear that what is happening is law, Indigenous law, and that Indigenous law has a place, a function, and a purpose in Canada.

We need ceremony again. It is, after all, these acts of ceremony and procedure that give effect to assertions of law. And Wet’suwet’en ceremonial procedures have the force of law, whereas calls from the barricade can only have force in resisting law, and resistance is no longer enough.

Photo: The Wedzin kwa River is an important source of fresh water for the Unist’ot’en and Wet’suwet’en people near Houston, BC. THE CANADIAN PRESS/Chad Hipolito

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Douglas Sanderson
Douglas Sanderson (Amo Binashii) is the Prichard Wilson Chair in Law and Public Policy at the University of Toronto faculty of law and has served as a senior policy advisor to Ontario’s attorney general and minister of Indigenous affairs. He is the co-author of Valley of the Birdtail : An Indian Reserve, a White Town, and the Road to Reconciliation (HarperCollins, 2022). He is a Swampy Cree, Beaver Clan, of the Opaskwayak Cree Nation.

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