Who speaks for First Nations?

… an Atlas blog post

Harry Swain, 8 February 2020

In a National Post article on January 30, columnist John Ivison doesn’t approve of rule by “self-anointed aristocrats,” preferring the elected chiefs and councils we white folks imposed on them through the Indian Act.

However, in a line of court cases starting with Calder in 1973 and accelerating after the Charter through Delgamuukw (1997) and Tsilhqot’in (2014), the Supreme Court of Canada has upheld the existence of aboriginal title and declared that the rights holders are the pre-European (pre-1846, in the case of BC) collectivities representing people who have been sharing land, language, history and culture for a very long time. The Tsilhqot’in Nation, in their view, is not any one or two of six Indian Act bands living on their traditional lands, but the whole lot of them together. And their traditional governance structures and laws prevail over provincial and federal laws on those lands.

Pretty radical stuff, perhaps, but it is the law of the land. Moreover, as constitutional law, it cannot be changed by any of our legislatures or parliaments, except by agreement. Mr. Ivison may find this distasteful, but he and the trial court judge in the case of the Wet’suwet’en have got the law wrong.

Those are facts. What follows are comments.

First, are these hereditary systems undemocratic? Take the case of Iroquois law (which is more familiar to me than the Gitxsan-Wet’suwet’en systems which are the focus of one current pipeline battle). Under the old Iroquois Confederacy, men, women, elders and even young people separately consider an important question, and argue it at great length until a consensus emerges. This is referred, as the situation may require, from the clan level to tribal and if necessary to the Confederacy itself. Everyone is consulted and has a chance to have their opinion heard. The final decision may take some time to form, but is remarkably durable once reached. It is arguably a much more democratic process than our vote-once-every-few-years system.

The executors of these communal decisions, the chiefs and sub-chiefs, are chosen by the clan mothers from among the men they have been training and mentoring for some years. A person takes on the onerous task of becoming chief (and is therefore “condoled” by the whole community for their sacrifice) when these women say so, and steps down when they say so. If the times call for a business-like person, that’s who they will select; if a war chief, watch out. The system has been described many times, including in my book Oka. There are good descriptions of Wet’suwet’en governance too, including in great detail in Delgamuukw. These systems are different from ours, notably in the strongly gendered roles involved, but to say they are undemocratic is just plain ignorant.

Second, the assignment of land rights to hereditary holders also has a long history in both English common and French civil law. Some inheritors may be nobles in those systems, but most are just the children of the generation that is passing away. I think the difference Mr. Ivison is trying to get at is the degree to which those hereditary rights may be infringed by the larger community, not just the wholesale condemnation that is all he has space for in a newspaper article.

All European-descended law modifies the rights of land-owners when important public issues arise. Land use is legally restricted to make room for the interests of neighbours, and in the limit land may be expropriated for pressing public purposes—a road, a war, a pipeline: hence this week’s decision by the Federal Court of Appeal on the Trans-Mountain Pipeline.

Mr. Ivison’s objection may be that the Supreme Court has been a little ambiguous on the asserted inviolability of aboriginal title, and it’s true that legislatures have been keen to accept without qualm every jot and tittle of the UN Declaration on the Rights of Indigenous Peoples. The same politicians who voted for UNDRIP assert that there is no veto power for natives in it, a circle that is hard to square.

A great deal of work lies ahead to reconcile these different views. It may be that a hundred years from now, if we haven’t all fried in a hotter world, the present moment will be seen as the time when the lawful powers of colonial and earlier governments became a bit more balanced. All sides have strong interests in sensibly negotiated outcomes. Recall that right after the joyous celebration of Tsilhqot’in, someone woke up the next morning and said, “Here! Who’s going to plow the roads?” And the discussion began.


Author: Harry Swain is a former deputy minister of Indian Affairs and Northern Development. He is currently an adjunct professor at the University of Victoria’s School of Government and an associate fellow of its Centre for Global Studies, see https://www.uvic.ca/research/centres/globalstudies/people/associate-fellows/swainharry.php.

Page created by: Ian Clark, last modified 10 February 2020.

Image: cropped from the image in National Post of the photo taken by Amy Smart, The Canadian Press, on 7 January 2020, at https://nationalpost.com/opinion/john-ivison-pipeline-issue-raises-important-question-who-speaks-for-first-nations, accessed 10 February 2020.