Who speaks for 'nations'?

If your social media looks like mine, recently you've been asked to “stand with the Wet'suwet'en in their fight against the Coastal Gas Link pipeline”. Many of you have heard that the Wet'suwet'en First Nation (the “Band”) through its elected chief and council has approved of the pipeline, and that the protesters are supporting hereditary chiefs. Confused? You should be. 

At the centre of the discussion is constitutionally protected Aboriginal Title - the exclusive right for a particular nation to use the land for a variety of activities. The nation's enjoyment of that title can only be infringed by the government with sufficient consultation. A “nation” is not as simple to define as it appears. Nations and title rights pre-date Canada's imposition of the “band” system. As a result, that after-imposed system may conflict with pre-existing indigenous institutions.

With that in mind, who then has the power to speak on behalf of the nation to consult on the infringement on the Wet'suwet'en title? Should it be the Band, or the hereditary chiefs, or perhaps both? As a lawyer, I usually turn to the courts for wisdom. Unfortunately the Canadian courts have not yet provided a direct answer. Our Federal Court did grapple with the question of hereditary versus elected chiefs in 2017 in relation to the Pacific Northwest LNG Project in the case of Wesley v Canada, but unfortunately the case was dismissed for other reasons.

Given this unsettled state, it should come as no surprise that both Band council and a handful of the hereditary chiefs are claiming the right to speak for the nation. A healthy dose of skepticism should be used to examine both claims. With that being said, there are two under-discussed reasons to take the argument of elected chief and council seriously.

To begin with, it's worth considering who has the support of the Wet'suwet'en people. Interviews with the Wet'suwet'en often show a community deeply divided on the costs and benefits of the pipeline, but with a majority in support. In fact, the current leaders of the Unist'ot'en Healing Centre (part of the blockade up north) Freda Hudson and Warner Naziel ran in 2019 for positions on the elected council of one of the Wet'suwet'en bands on an anti-pipeline agenda, and both lost.

The other reason is that mandatory consultation with hereditary chiefs would put Canada in the position of arbitrating who is (and who is not) a hereditary chief of a given nation in order to consult with them. It's not easy to know who is rightfully a hereditary chief. For example, Warner Naziel's claim to chiefdom is contested. I don't believe it's appropriate for our courts or the Canadian government to determine for the Wet'suwet'en who their traditional leaders are. The Federal Court in Wesley agreed with this assessment.

So if you decide to go and blockade a bridge, train, ferry, this weekend, I encourage you to think about the actions you take in the name of the Wet'suwet'en nation. 

Derrick Murphy is a practicing lawyer at TNG Legal Services MDP. He holds a Juris Doctor in law with a specialization in Aboriginal Law from UBC.