Business Law
26 Who Must Be Consulted?
Learning Objectives
- Explain the differences between hereditary leadership and band leadership.
- Identify the conflict between democratically elected leaders and hereditary leaders.
- Consider issues that arise when multiple parties must be consulted.
The answer to the question “Who must be consulted?” seems obvious on its face: the affected Indigenous groups, of course! However, once we begin to peel back the layers, this answer gets complicated quickly.
First, many Indigenous groups have power structures that are not immediately familiar in the Euro-Canadian context. A group’s democratically elected band leadership may have been consulted for a project, but that group’s traditional power structure deferred not to democratic leaders, but to hereditary leadership. Recall that the band itself, along with its leadership structure, is a creation of the Indian Act, which was imposed by the Canadian government on these communities. This conflict of values between democratically elected band leaders and traditional leadership structures remains an ongoing issue within Indigenous communities. For more information on this, see the section on First Nations governance.
This conflict was brought squarely into the public eye in 2020. Coastal GasLink wished to build a natural gas pipeline across northeastern B.C. and into the west coast. Consultation with elected band councils occurred across affected Indigenous territories, achieving broad support. However, despite elected band officials approving the pipeline, hereditary Wet’suwet’en leadership opposed the project, and in January 2020, they began blockading a critical railway located near Smithers, B.C. (Stueck & Jang, 2020). They also demanded the Royal Canadian Mounted Police leave their territory. The federal Minister of Crown–Indigenous Relations and B.C.’s Minister of Indigenous Relations and Reconciliation met with Wet’suwet’en hereditary leaders in early February. Discussions soon broke down, and the RCMP arrested and removed blockaders in mid-February, ending the immediate conflict but leaving lingering resentment (BBC News, 2020; Berman, 2020).
Not all Wet’suwet’en agreed with their hereditary leadership. Many wished to have their democratically elected officials make decisions. Others claimed that most Wet’suwet’en supported the project and their wishes were “hijacked” by hereditary leaders (Tumilty, 2020). Whatever the case may be, it’s unclear how this conflict between Canadian-imposed democratic leadership and traditional hereditary leadership should actually be resolved for the purposes of the Duty to Consult.
Indigenous groups across the country have different cultures and languages. What is right for one group may not be right for another. Just like different member states of the European Union have unique cultures and languages as well as their own decision-making processes, different Indigenous groups may be undertaking a period of introspection to