B.C.’s Human Rights Commissioner Kasari Govender has weighed in on the thorny issue of who represents First Nations – democratically elected band councils or unelected hereditary chiefs.
On Friday, January 10, Govender issued a statement in which she essentially suggested that Canadian law should be subordinate to United Nations committee declarations, and that duly elected band councils should be subordinate to unelected chiefs. The statement was made in refence to the ongoing standoff between the Coastal GasLink pipeline and some members of the Wet'suwet'en First Nation.
“In my lifetime, there has never been a more important time for Canada to demonstrate support for institutions of democracy,” Govender said in a written statement.
She then proceeds to argue that institutions of democracy in Canada, including the courts and elected governments – from the band council to federal government level – should be subordinate to an unelected United Nations committee and vocal minorities within First Nations communities, who may or may not speak on behalf of their clans.
Govender also echoes concerns raised by the UN committee about the escalating threat of violence, and suggests the RCMP not be allowed to use force to enforce a court injunction.
“I join CERD in urging Canada to immediately cease the forced eviction of Wet’suwet’en and Secwepemc peoples, to prohibit the use of lethal weapons, and to guarantee no force will be used against them,” she writes in her statement. “This is a matter of fundamental human rights.”
Given that the blockades that have been set up to prevent work being done on the pipeline have been deemed illegal, she seems to be suggesting that the RCMP should not be allowed to enforce the law.
Business in Vancouver has requested reached out to the human rights commission to get clarification from Govender. Her office has not yet responded.
Govender cites the United Nations Committee for the Elimination of Racial Discrimination, which has called for all major projects underway in B.C. – including Site C dam, the Trans Mountain pipeline expansion and the Coastal GasLink pipeline – until consent is given by “all indigenous peoples impacts by the projects.”
But in the Coastal GasLink case, that consent was granted by the legally recognized representatives of the Wet’suwet’en – something a BC Supreme Court judge affirmed when issuing an injunction against protestors.
There are 13 Wet’suwet’en houses, each with its own head hereditary chief, and five clans. There are also five elected band councils.
Seven hereditary houses chiefs are opposed to the Coastal GasLink project, but all five elected band councils approved the Coastal GasLink project, and the community benefits agreements that came with that approval.
Asked who it considers to be the rightful representatives of the Wet'suwt'en, the B.C. ministry of Indigenous Relations & Reconciliation said in a written statement that that's up to the Wet'suwet'en people themselves, not the provincial government.
"Wet'suwet'en governance structure is an internal matter for the Nation to speak to," the ministry said. "It is not for government to speak for the Nation. It is up to each Nation themselves to decide who speaks for their Nation, and how those decisions are made internally."
But the provincial government does, in fact, decide who speaks for the First Nation, and it does so every time it directs project proponents to consult with First Nations, as per section 11 of the B.C. Environmental Assessment Act.
Under that section, the provincial government tells the proponent who within a First Nation they must consult. And in the Coastal GasLink case, the Unist’ot’en was not identified by the provincial government as a unit of Wet'suwet'en with whom Coastal GasLink was required to consult – not that the company didn't try, anyway.
The Unist’ot’en is one of the clans within the Wet'suwet'en. It has led the opposition to the Coastal GasLink project. When she granted an injunction against members of the Unist’ot’en and other protestors, BC Supreme Court Chief Justice Marguerite Church noted that the Unist’ot’en was not recognized as an aboriginal group with which the proponent needed to consult, as per Section 11 of the BC Environment Assessment Act.
Attempts were made to consult with the Unist’ot’en, but representatives refused to speak with the company.
"The Unist’ot’en was not identified in the Section 11 Order as an aboriginal group with whom the plaintiff was required to consult with respect to the Pipeline Project," Church writes in her decision.
In other words, the province does decide who speaks for a First Nation, contrary to the ministry of Indigenous Relations & Reconciliation's assertion otherwise.
Church also noted that there is disagreement among the Wet'suwet'en as to who rightfully holds hereditary titles.
"More recently, there have been disagreements among some of the Wet’suwet’en people with respect to who holds certain hereditary chief names and whether proper protocols have been followed with respect to taking of such names," she wrote.
Karen Ogen-Toews, a former elected chief of the Wet’suwet’en First Nation band council, and current CEO of the BC First Nation LNG Alliance, said Govender is off base.
“I think that her comment is uncalled for,” she said. “Until she gets the full story, I think the Human Rights (Commission) needs to do their homework before they make general statements like they have.”
Ogen-Toews points out that there has never been a vote by clan members on the Coastal GasLink issue, whereas there have been votes by band councils.
“There never has been a vote of the clan members,” she said. “And if there was, they would vote in favour because those same clan members are the members of those five Wet’suwet’en nations, and we have done our due diligence.
“When I was the chief, we would have community member meetings, and we would do votes on items such as this because it’s a major decision. Not everybody agrees, but the majority of the people have agreed to have us sign these agreements.”