Canada’s Hollow Concern for First Nations Democracy

The government is failing to defend the democratic rights of First Nations communities trying to resist their hereditary leaders

Photograph courtesy of the Canadian Press/Sean Kilpatrick
Protesters voice their opposition against pipelines during a rally on Parliament Hill in Ottawa on Tuesday, Jan. 8, 2019. The Canadian Press/Sean Kilpatrick

In 1991, a group of band members from the Kwantlen First Nation—my home reserve in British Columbia’s Lower Mainland—filed a federal lawsuit, claiming that they were under the control of an illegitimate leadership. Twenty-four years earlier, as instructed by the provincial Indigenous authority, Kwantlen had elected a chief and two councillors in order to form an “officially recognized” government. Alfred Gabriel Sr. became chief, and within the next several years, Kwantlen watched as the title was passed on to his son Joseph Gabriel. This succession was later reflected in a band council resolution dated April 1, 1989, that disclosed that Kwantlen was now under “hereditary custom”—a governance model where the position of chief is inherited by bloodline.

For many on Kwantlen, the very idea of someone being destined to reign over the entire nation is foreign. Our language, Halkomelem, has no word of its own for monarchical concepts such as “king.” The closest term would be siyam, denoting a class of respected people. Siyam served as ambassadors, leaders in war, and heads of large extended families. But that’s as far as their authority went. The dissidents who launched the court case stated that, for much of Kwantlen history, any decision affecting the nation—including the selection of chief—had always been arrived at by a quorum of band members. Now, under the formalized hereditary structure, they were angry that daily life—such as the disbursement of administrative monies and housing—was being overseen by a ruler and band council appointed by the chief for life.

The 1991 lawsuit alleged that Joseph Gabriel’s hereditary chieftainship had not been approved by “a vote of the membership of the Band,” and that, under his rule, conditions in the community had deteriorated. According to the statement of claim, Joseph Gabriel had not only placed people close to him in positions of power within the band but also allegedly misappropriated band funds. Other sources describe legitimate Kwantlen members being prevented from registering with the band. Copies of complaints I obtained from Aboriginal Affairs and Northern Development Canada and Indigenous and Northern Affairs Canada suggest years of neglect by the hereditary government, ranging from not responding to citizens in need to a band member who alleged her home was seized for renovation and then given away without an explanation from the chief and council.

The lawsuit requested that the band council call an election to be supervised by the Department of Indian and Northern Affairs Canada. According to government court documents, the department considered the request “unnecessary and inappropriate.” The department’s policy was to avoid interfering in so-called custom codes—customized political systems drawn up by the First Nation itself that allow it to opt out of the election provisions of the Indian Act. More than half of all First Nations are run by custom codes. Many are democratic or include democratic ideas. Elections, however, aren’t a requirement. And if a band council converts to a hereditary model, federal officials are under no obligation to intervene even if problems with accountability arise.

The Kwantlen case, according to people I’ve interviewed, was settled out of court in 1993, with a promise of a new vote for chief and council. There is debate over what happened next—the present band leadership say they “do not have current knowledge of how the case ended”—but two witnesses that I’ve spoken to describe a vote that was held with little notice and with no time to campaign or for other candidates to step forward. Witnesses also say that, instead of neutral oversight, one of the band’s accountants was called in to run the brief affair in a nearly empty church and that, after the surprise vote, the hereditary system was declared valid and it was announced that no further elections would be held.

Kwantlen’s current chief is Marilyn Gabriel, Joseph Gabriel’s daughter. In our interview, she offered an alternative version of events in the church, saying that she believes an Indigenous and Northern Affairs Canada official was present, that the vote was not directed by her family, that it involved a show of hand, and that the custom hereditary system was unanimously supported. She also says there was a vote to confirm her as the subsequent hereditary leader. Marilyn Gabriel defended the hereditary model for the stability it brings to the community and its business dealings and explained that she and her council partner with elders, staff, and community members to make decisions, in keeping with the system of governance that is based on the traditional models of the region. She acknowledged the grievances against her government. “I feel bad that some people feel like that,” she said, but referencing her “open-door policy,” she reassured me that her government engages meaningfully with citizens.

The larger concerns raised by the 1991 lawsuit, however, haven’t gone away. Resistance against the hereditary structure has not only come from members of my family—who, in the 1990s, were part of a group that tried to oust the chief—but the chief’s own family as well. That general sense of anxiety is what led me, last year, to create Kwantlen First Nations Community, a website that collects what I believe should be publicly available information about the reserve and its governance.

What happened in Kwantlen is hardly unique. Similar tensions have flared up on northern Ontario’s Ojibwe Nation of Saugeen, Dakota Tipi First Nation in Manitoba, and Da’naxda’xw First Nation near northern Vancouver Island. Federal regulation has allowed a number of First Nations across the country to live under custom codes featuring leaders appointed for life. Some communities have good rulers, but when citizens have a bad one, they have few options for fighting back—and so abuses can go unchecked.

You could appreciate, and many do, the federal government’s hands-off policy as an illustration of our nation-to-nation relationship. Would Canada dare interfere in the internal affairs of other sovereign nations? As a matter of fact, yes. Earlier last month, foreign-affairs minister Chrystia Freeland declared the Venezuelan election a fraud, called President Nicolás Maduro a dictator, and demanded that he “immediately cede power to the democratically-elected National Assembly until new elections are held.” In recent years, Canada has spoken out on human rights abuses in Chechnya, Myanmar, Syria, Iran, Sri Lanka, Yemen, and Cameroon. Because of its special role in First Nations governance, Canada should feel an even greater duty to defend the rights of citizens of those communities. But its indifference to extreme examples of hereditary chieftainship—examples where the model has become a threat to the security of First Nations people—exposes the fact that Canada’s belief in democracy doesn’t really extend to the Indigenous population.

This became especially clear on January 7 when RCMP officers, wearing military-style fatigues and carrying assault rifles, breached a checkpoint set up by the Gidimt’en clan of the Wet’suwet’en people in northern British Columbia. The Mounties were enforcing a court order to remove the blockade and give employees of Coastal GasLink access to disputed land to prepare for construction of a natural-gas pipeline to the coast. While the checkpoint was situated off-reserve, it was located on ancestral lands of the Wet’suwet’en, which the traditional leadership lays claim to. That leadership is partly made up of thirteen hereditary chiefs, all of whom oppose the pipeline. This is in contrast to the elected band council, which approved it.

Many non-Natives seemed genuinely upset that Wet’suwet’en’s hereditary leadership would act against the wishes of the band’s elected council. Sun Media’s Lorne Gunter writes that the hereditary chiefs are “subverting the democratic will of their people.” Further to the right, Rebel Media’s Sheila Gunn Reid wrote that the Wet’suwet’en people were being “disenfranchised by the paternalistic actions of the hereditary chiefs.” Writing in the Washington Post, Canadian YouTube personality and political commentator J.J. McCullough criticized the influence of unelected hereditary leaders, writing that “Canada’s indigenous future looks likely to be divorced from the democratic assumptions that governed its past.” On Twitter, one person summed it up with a question: “I am confused how the democratic rights of FNs don’t matter?”

Such questions only serve to highlight the hypocrisy behind Canada’s concern for First Nations democracy. The Canadian state, after all, is perfectly happy to tolerate hereditary rulers. But the minute First Nations governance doesn’t align with the state’s priorities, it calls in the RCMP. Good Native government, in other words, means a government that meets the needs of Canadian industry. If the democratic rights of First Nations matter only when they might help to get a pipeline built, then Canada’s championing of democracy as a measure of legitimacy is just a pretense. Native people have always been treated as a means to an end. But our well-being and our rights should be an end in itself—whether or not they get a product to tidewater.

Federally, status Indians—or Natives registered under the Indian Act—only gained the right to vote in 1960; Quebec, the last province to give status Indians that right in provincial elections, did so nine years later. (To put that in context, Jay-Z is the same age as the First Nations electoral franchise in Canada.) With the Native vote coming so late in Canada’s history, it should be no surprise that Indian agents paid little mind to whether the custom governance structures they recognized on each of the First Nations under their control was democratic or not or respected by the people or not. That inattention had consequences: once a hereditary government is in place, there is no clear way for the people of that First Nation to reverse it. In a recent Twitter thread, Dustin Khelsilem Rivers, an elected councillor with Squamish Nation, explained how his First Nation transitioned from a hereditary system to a democratic model: rule through council. But situations like this are rare.

While the most problematic parts of hereditary chieftainship arise from the manipulation of the power granted by the federal government to community elites, it is important to remember that not all hereditary chiefs are created equal. In BC alone, there are at least three different models for hereditary systems among the province’s 198 First Nations, which vary in their interpretation of tradition. Some leaders, as with the Wet’suwet’en, are unofficial chiefs who often work alongside the federally recognized and elected band council. Many First Nations people support this type of arrangement, where day-to-day business is run by a democratic body but where each clan can turn to a ceremonial leader to govern cultural affairs. These chiefs are part of a centuries- or millennia-old system of governance with accountability to each other and to their clans or families. Some hereditary chiefs have vestigial titles with no political power—these chiefs come from communities which have abandoned any form of hereditary rule for a strictly democratic system. Other hereditary chiefs are integrated into democratic government, like in Canada with its unelected Senate.

Each of those custom codes combines tradition with democracy, but on just under 10 percent of First Nations in BC, the federally recognized band government is fully hereditary. That is to say, no elections and, potentially, no accountability. Since the Trudeau government ended enforcement of the First Nations Financial Transparency Act in 2017 (a law that required First Nations to publicly post their yearly audited financial statements), most First Nations continue to voluntarily disclose their finances—but of BC bands under full hereditary rule, just under half refuse to open their books.

Custom codes are one of the few situations where the federal government respects First Nations’ sovereignty. This approach would be commendable if custom codes could always be trusted to mean fair and transparent governance with the consent of their community. But where that hasn’t happened, and communities are turned over to an unelected chief, this respect for sovereignty looks more like a lack of concern for the rights and well-being of Canadian citizens under the First Nation’s supervision. Once the federal government recognizes a custom code, that chief has the resources of the state behind them.

An example of how those resources can be used was recently on display in CBC’s Jorge Barrera’s report on the members of the Ojibwe Nation of Saugeen in northern Ontario who opposed the “lifetime chief” Edward Machimity. During a tense encounter with Chief Machimity, a CBC reporter meeting with a dissident on-reserve was given thirty minutes to leave before police would be called. CBC also obtained video of Ontario Provincial Police investigating an off-reserve gathering of the chief’s opponents—who included the chief’s brother—after an anonymous caller reported that they were running a mock vote. The officers entered the premises and questioned the group about their political activities.

Far from being noninterventionist, in other words, the Canadian state has tacitly picked a side. A recent federal court battle on the Da’naxda’xw First Nation pitted dissidents who were fighting against a hereditary chief and council that for thirty years has refused to call an election. As with the Kwantlen, their hereditary chief took power in the 1980s. And, as with the Kwantlen, once the change was made, the federal government took a hands-off approach. Victoria lawyer and Da’naxda’xw citizen Nicole Hajash explained the results of the government’s retreat in her 2017 affidavit, filed as part of the lawsuit. She writes that throughout the years under the Da’naxda’xw hereditary chief, the band council ignored “phone calls, letters, emails, and most requests for information.” Band meetings were “rarely” held and community members felt “neglected and ignored, or worse, intimidated.”

The people of Da’naxda’xw were able to come to a resolution in the court case against their hereditary chief and council; as of 2017, they were working on a new custom code that would be more inclusive and subject to a vote of the people. The Da’naxda’xw are lucky to have a lawyer among their group of dissidents. Other First Nations under hereditary rule aren’t so fortunate. For those under the Indian Act, appeals can be made to the federal government, and the minister has the power to step in. However, those operating with a custom code must often turn to the federal court to resolve their disputes. The cost of a trial is impossible for most First Nations to afford. A 2015 survey of legal fees in Canada showed that the average cost of a two-day trial was $31,330. That same year, a Canadian Press report found that over 80 percent of reserves have average incomes below the low-income threshold of $22,133.

With few options for recourse, it seems the only other choice left to First Nations people is to engage in violence. In late 2001, when problems with Dakota Tipi First Nation’s hereditary ruler arose, the council asked the chief to resign and call an election. According to newspaper reports from the time, the chief cut off social assistance from protestors. The result was an uprising, with vandalism, assault, and eventually a shooting. Ultimately, there was enough chaos that the office of the then minister of Indian affairs and northern development withdrew their recognition of the chief and called an election. The band remains democratic today.

In a recent Canadian Press interview, the minister for Crown-Indigenous relations, Carolyn Bennett, was asked her views on the democratic legitimacy of hereditary leaders. The minister replied: “When you talk to the best knowledge keepers there were always ways of dealing with people who were not serving their communities well, these systems were in place long before the settlers showed up.” In practice, one of the few people with the power to deal with dictatorial hereditary chiefs who are not serving their communities is the minister herself. A power granted to her both under the Indian Act and under the 2014 First Nations Elections Act. That act states that the minister can force elections if she is “satisfied that a protracted leadership dispute has significantly compromised governance of that First Nation.” As far as I can see, it’s a power she has never exercised.

Is the country really interested in any of this? Not really. Look at the reaction to the Wet’suwet’en crisis. In the same breath that Canadian commentators deify democracy, they also want to be told who to negotiate with. They want to know: Who speaks for First Nations people? Whether it’s a hereditary chief or a democrat, they’ll take it, as long as that chief can clear the way for industry. A 2010 Edmonton Journal report on a clash among the Lubicon Cree makes this colonial mindset very clear. Elise Stolte, a Journal staff writer, writes: “The year-long leadership dispute among the Lubicon Cree has left the oil industry scrambling. Two chiefs are too many to deal with, say industry leaders, but the federal government refuses to choose between them.” The story goes on to explore the hardships faced by an oil industry CEO—one of the chiefs put a lien on the executive’s home—but hardly any of the reporting describes what Native people on-reserve want or deserve. The focus is on the struggle to eliminate an obstruction.

In an editorial on the RCMP raid on the Wet’suwet’en, CTV commentator Don Martin gave a eulogy for the energy sector in Canada: “The industry obit will detail how a few chiefs, bestowed with the ceremonial title by their ancestors, finally proved there’s no way to move oil, bitumen or natural gas from the ground to the ocean.” Martin is right, except the legacy of hereditary-chief rule too often owes more to his ancestors and their representatives in Ottawa than it does to First Nations. In recent years, several of these chiefs—including Kwantlen’s—have turned their backs on their federal patrons and oppose the Trans Mountain pipeline. With so much riding on the construction of the pipeline, a First Nations problem has suddenly become Canada’s problem. With the havoc that hereditary chiefs are set to cause to the country’s economy, there is reason to hope that our rights to choose our government, and our leaders, become something worth caring about.

Robert Jago
Robert Jago (@rjjago) writes at rjjago.com.