Whose law is it, anyway: The thorny dilemma of consent and majority rule in the age of UNDRIP

When elected leaders of the Wet’suwet’en First Nation voted to approve more than $300 million in benefits agreements with Coastal GasLink Pipeline Ltd., they did so with the confidence that the majority of their people supported the project.

Polling suggested that more than 80% supported the project and the benefits it would bring, according to Theresa Tait-Day, a Wet’suwet’en hereditary chief.

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But Wet’suwet’en governance is a bit like a constitutional monarchy: it has five democratically elected band councils, but it also has 13 unelected hereditary house chiefs, several of whom oppose the project.

It’s uncertain whether majority rule applies under such a system, and it’s unclear whether the recently adopted United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) will do anything to address that fundamental dilemma.

While the courts and provincial government recognize the elected band councils as the legitimate representatives of the Wet’suwet’en, the B.C. human rights commissioner, the United Nations, environmental organizations and a number of other groups – including the BC Government and Service Employees’ Union and Union of BC Indian Chiefs – have all thrown their support behind the unelected hereditary chiefs who oppose the project.

In hindsight, if Wet’suwet’en leaders who support the project had taken a page from the Tahltan Nation, the uncertainty over who rightfully represents the Wet’suwet’en might have been avoided.

At a forum last week on UNDRIP and the opportunities it might present for business, a number of success stories were highlighted to illustrate what can be achieved when the spirit of UNDRIP is applied.

One of those success stories is the relationship the Tahltan Nation has with industry, especially mining.

There are several operating mines and a number of potential mines under exploration or development in traditional Tahltan territory in northwest B.C. – the so-called Golden Triangle.

From the Tahltan experience it is clear that it is not just incumbent on government and industry to consult with First Nations; it is also important for First Nations leaders to get the consent of their own members when approving resource development projects.

A central UNDRIP question is the principle of First Nations consent, including the question of who can grant it.

“There is consent amongst your own community,” said Chad Day, president of the Tahltan Central Government. “That’s a very tricky thing.

“It’s one thing to get the consent of an Indigenous government. And as we see with some examples around the province … getting the consent of the government and getting the consent of the people on the ground are two very different things.”

And it can be very tricky indeed when there are dual governance systems, as is the case for the Wet’suwet’en.

While their five clans have elected band councils, they also have a hereditary chief system. In addition, there is the Office of the Wet’suwet’en, which was set up to represent hereditary chiefs in treaty negotiations.

The hereditary chiefs say the elected band councils have governance authority only on reserve land. Outside reserve land, hereditary chiefs represent their people on issues like treaty negotiations, they say.

But the Tahltan also have a clan system, and in 2005, a dispute similar to the Wet’suwet’en’s erupted when elders disagreed with the Tahltan Central Council’s support for the Fortune Minerals anthracite coal exploration project.

The Tahltan appear to have addressed the thorny issue of consent by doing a thorough job of consulting within the community and holding votes. When a project is being considered, Day said, the Tahltan government goes to 16 of its communities in B.C. and the Yukon and eventually holds a ratification vote.

“Everybody can respect that. Even people that really don’t like me or like our government or like the decision, they respect the fact that we informed our members properly.”

No such ratification vote was held within the Wet’suwet’en, Tait-Day told Business in Vancouver, although some polling was done.

 “The Moricetown Band canvassed the community,” she said. “Eighty-seven per cent wanted the project to go.”

When she saw there was disagreement between elected and hereditary leaders over the Coastal GasLink project, and no mechanism to represent both, she and two other Wet’suwet’en women formed the Wet’suwet’en Matrilineal Coalition (WMC).

The coalition was attempting to develop a mechanism for decision-making that involved all hereditary clan chiefs, all 13 house chiefs and elected chiefs.

“The WMC has been trying to work with the nation so that we can make decisions democratically,” Tait-Day said. “My husband is Tahltan, so I know that system works.”

Ultimately, she was unsuccessful in getting all members of the Wet’suwet’en to agree to a central decision-making organization.

Whether UNDRIP will address the question of who represents a given First Nation remains to be seen. Indeed, Sandy Carpenter, an Aboriginal law expert, said he doesn’t think UNDRIP will have much of an impact on Canadian laws.

“I don’t think that we’re talking about a major departure from those [laws], and that the people who do suggest that this legislation is a major departure from existing law should spend more time thinking and reading about what this legislation is intended to do.”

Whose law is it, anyway?

Last week, as a standoff between hereditary chiefs of the Wet’suwet’en and the RCMP over the Coastal GasLink pipeline escalated, B.C. Premier John Horgan insisted that the $6.6 billion project will proceed.

He was then slammed by the Union of BC Indian Chiefs (UBCIC) for violating a fundamental principle of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and his reading of the law was criticized by the BC Civil Liberties Association and a University of British Columbia law professor.

In December, Horgan’s government passed Bill 41, which will begin to enshrine UNDRIP into provincial laws. A fundamental UNDRIP tenet is that any resource development must have First Nations consent, and while the Wet’suwet’en’s elected band councils support the Coastal GasLink project, several hereditary chiefs oppose it.

An all-day forum on UNDRIP last week saw a number of government and legal experts struggle to define what consent means and who has the right to grant or deny it.

UBCIC secretary-treasurer Judy Wilson said Horgan’s stance on Coastal GasLink is in stark contradiction to UNDRIP.

Formally adopting UNDRIP may have created some false expectations on the behalf of some First Nations, who view it as a legal tool – one with international support – that affirms their right to self-determination.

But the B.C. government has insisted it neither creates new laws nor confers veto powers on First Nations, so those who thought UNDRIP gives them additional rights may be disappointed.

“This is a case of the chickens coming home to roost for governments that have endorsed the UNDRIP without reservation,” said Robin Junger, an expert in Aboriginal law at McMillan LLP.

Wet’suwet’en hereditary chiefs opposed to the pipeline project may have more success invoking Canadians laws than UNDRIP – as in the Delgamuukw case, which affirmed the Wet’suwt’en have inherent Indigenous rights.

“The confluence of legal systems here makes the problem a complicated one, and one that is not reducible to a simple statement about the rule of law,” said Margot Young, a professor at the UBC Allard School of Law.

“In addition to law that comes out of the BC Supreme Court about the injunction, there is also constitutional law. There are also important elements of this dispute that reflect ongoing Wet’suwet’en systems of governance and law that must be part of the legal analysis. And finally, as an umbrella over all of this, is Canada’s international human rights obligations.”

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