The Indigenous commitment to democracy is at stake in the recent memorandum of understanding signed between the Wet’suwet’en, the province of British Columbia and the federal government.
A majority of the elected Wet’suwet’en chiefs were incensed about the agreement, insisting the signing be postponed until they were consulted.
While the elected chiefs were justified in their concerns, largely due to the behind-closed-doors nature of the negotiations, this agreement isn’t as bad as presented and leaves plenty of room for negotiation.
The land claims of the Wet’suwet’en are subject to treaty negotiations. But the central problem was that those discussions – officially to be achieved through the B.C. treaty process – had been stalled for years.
The agreement gives more clarity on these Indigenous rights and title issues and picks up where the 1997 Delgamuukw ruling by the Supreme Court left off. The first part of the agreement reads: ‘Canada and B.C. recognize that Wet’suwet’en rights and titles are held by Wet’suwet’en houses under their system of governance.”
The agreement then binds all parties to three months of negotiations to hammer out these issues and precisely (one hopes) define these terms in real life situations. It sounds closer to a modern treaty negotiation, as there is mention of exclusive and shared jurisdictions.
One problematic area is B.C. committing in future negotiations to its recently-passed Declaration on the Rights of Indigenous Peoples Act. The law attempts to harmonize the province’s actions with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). But that aspirational document, which is largely innocuous in many parts, includes provisions related to “free, prior, and informed consent” that many Indigenous parties often mistakenly believe amounts to a veto.
The crux of the issue is how “Wet’suwet’en houses under their system of governance” will be defined in the final negotiations. Mention of “transparency, accountability, and administrative fairness mechanisms” in the agreement itself is certainly encouraging but the devil will be in the details.
All these important matters lead to one place – the future of Indigenous democracy in Canada. This needs to be clarified because commentary has emerged that criticizes the institution of hereditary chiefs. Some commentators alleged this institution “damaged First Nations democracy” and compared these chiefs to “monarchy.”
These allegations, however, are misleading and unhelpful. Hereditary chiefs aren’t about absolute or autocratic power, but reflect traditional Indigenous values in modern Indigenous governance. In B.C., these unelected chiefs largely work collaboratively with the elected ones. The issue really is what role they will play in future governance.
Canada has a bad history of imposing institutions on Indigenous communities. In the 19th century, Canada imposed a Western-style electoral system on these communities to assimilate them into the mainstream. Since then, First Nations have justifiably been offended by this spotted history and have sought to move away from the system imposed by the Indian Act, including its municipal-style electoral system.
However, these Indigenous communities mustn’t allow their struggle to move away from the colonial Indian Act to diminish their strong commitment to elected governance. ‘Decolonizing’ doesn’t have to mean First Nations abandoning what has become a universal consensus that government legitimacy is grounded in popular consent.
Over the years, First Nation citizens have filed complaints and been involved in court cases where they fought for full First Nation voting rights in band elections. First Nations opposed leadership that ignored popular consent and the rule of law. Indigenous people are just as invested in the idea that elections need to be grounded in democratic vote.
There are too many examples of First Nation leaders abusing their power to not see the writing on the wall. In B.C., the Da’naxda’xw First Nation went to federal court when its hereditary chief and council refused to call an election for 30 years. For Indian Act bands that adopt custom systems, there are many examples of band politicians who abuse their powers, ignoring popular will.
In 2020, Indigenous communities should have governance systems that recognize the role of hereditary chiefs or other traditional institutions, but mainly to counter or check the power of elected chiefs, rather than to overrule them. Canada’s Senate would be the closest model.
If the Wet’suwet’en – in their final negotiations – don’t give their elected institutions the leading role in their system, they will come to regret it. Thus, the whole Wet’suwet’en community needs to be involved and choose a governance model that respects culture and democratic legitimacy.
That is much more important than the Coastal GasLink issue.
Joseph Quesnel is a research associate with the Frontier Centre for Public Policy.