Who has the ultimate say?

When elected councils have a vision about pipeline development but hereditary chiefs have a different one, who has the ultimate say?

Lakes District News has recently reported on several hereditary chiefs from Wet’suwet’en First Nation, as well as Lake Babine Nation, who’ve expressed disapproval of their elected council’s support of liquefied natural gas pipeline agreements.

When elected councils have a vision about pipeline development but hereditary chiefs have a different one, who has the ultimate say?

It turns out the answer is not so simple.

Gordon Christie, Director of the Indigenous Legal Studies Program at the University of British Columbia, said that under Canadian law, it is clear that band councils have a greater say.

“Band councils were created by the federal government and imposed on First Nations communities from the late 1800’s up to the mid-twentieth century,” he explained. “As creations of Canadian law, band councils enjoy more power in that context.”

However, Christie points out that First Nations were in Canada long before the Canadian government. Thus First Nations communities were governed by their traditional systems long before the structure of elected councils was created.

“If you were to ask, then, within any given First Nation which has greater authority – the band council or the hereditary system – it’s quite likely you would find many who say the traditional/hereditary system has more authority, as it is not the imposed system forced upon the community by the federal government,” he said.

“These traditional systems tend not to get much recognition in Canadian law since they are, in a sense, opposed to Canadian law – since they exist outside Canadian law, as governmental authorities that do not derive their powers from Canadian sources,” he added.

John Ridsdale, Wet’suwet’en Hereditary Chief, said the Delgamuukw-Gisday’wa and the Tsilhqot’in cases were important milestones in the process of recognition of hereditary chiefs as the proper rights holders with respect to traditional territories.

In 1987, both the Wet’suwet’en and Gitxsan commenced a legal case that would come to be known as the Delgamuukw-Gisday’wa case. Led by Wet’suwet’en hereditary chiefs, they sought legal recognition by the Canadian courts of ownership and jurisdiction of their traditional territories, which in the Wet’suwet’en case, is 22,000 square kilometres.

In the end, the Supreme Court of Canada recognized that hereditary chiefs have Aboriginal rights, and that their title ownership of the land was never extinguished.

The Tsilhqot’in case followed the Wet’suwet’en case in the establishment of title, and on June 26, 2014, the Supreme Court of Canada declared Aboriginal title to approximately 1900 square kilometres of the claim area.

“Both the Delgamuukw-Gisday’wa and Tsilhqot’in Supreme Court of Canada decisions affirm our hereditary chiefs authority and jurisdiction for all of our traditional territories [excluding the band reserves, and municipalities],” said Ridsdale.

“We [hereditary chiefs] have never ceded, surrendered nor released, or ever signed a treaty with Canada and B.C., nor have the hereditary chiefs ever ceded, surrendered or released our jurisdiction and authority; the answer is simple as that.”

Carla Lewis, a Wet’suwet’en member with a master’s degree in Indigenous governance, said the situation in Burns Lake is quite unique since no treaties have been finalized and there is only asserted title in the area.

“Since nobody has finalized a treaty, government and industry are required to consult and accommodate all First Nations who can prove strength of claim to the area,” she said.

According to Lewis, the Crown asserts that both the hereditary chiefs and elected councils have title and the power to decide. However, when it comes to pipeline developments, hereditary chiefs won’t have the ability to have a veto power until a land claim is settled in the area.

In Lewis’ opinion, the hereditary chiefs should be the ones having the highest strength of claim based on the rules outlined by the courts in both the Delgamuukw-Gisday’wa and Tsilhqot’in cases for proving title.

“The hereditary system existed prior to colonization and they have already proven their title exists,” she said.

“I think that is a purposeful tactic of conquer and divide – as long as we are fighting amongst ourselves, we aren’t fighting them [the Crown].”