There are two kinds of Indigenous governance structures, but Canada has been listening to just one

If all the elected First Nations along the pipeline route signed agreements, why were there still protesters?

The above question kept coming up again and again from observers who didn't quite understand why a blockade was set up at the Unist'ot'en camp in northern B.C., preventing work to proceed on the Coastal GasLink pipeline. A deal was reached Thursday between Wet'suwet'en hereditary chiefs and the RCMP to allow for pre-construction work, but the question for many still remained.

The short answer is this: there are two kinds of governance structures within Indigenous communities, and industry and government have only paying attention to one.

There's the system required by the Indian Act — the chief and council — which is based in colonial law and was imposed rather than adopted. It is not universally recognized by Indigenous people.

The other is the hereditary system: a governance model that varies from one nation to the next, where chieftainships, titles and responsibilities are passed down through generations. It is not beyond reproach, and in some cases it may need to be adjusted to reflect the capitalist world of today. But it is our traditional way, it has sophisticated checks and balances, and it has been in use since before Canada claimed sovereignty.

The First Nations along the pipeline route who have signed benefit agreements are the chiefs and councils elected under the Indian Act. All but one of the Wet'suwet'en hereditary chiefs, until Thursday, were united against this pipeline.

The odds at which these two systems are often placed is not accidental. The authority of chief and council is delegated by the Indian Act and has historically been largely dependent on a federal ministry to deliver services. Canada's colonial policies of dispossession and cultural repression through residential schools, the Sixties Scoop, the reserve system and much more have created a system of dependency through enforced poverty.

The reliance on federal funding to maintain services makes it incredibly difficult for elected band officials to stand on principle. I don't mean to detract from their efforts or the sincerity of their leadership, but they are elected to keep services flowing, and the reality is that for them to resist too strongly risks getting nothing at all.

Hereditary leaders are not beholden to the same obligations and are much freer to demand that their inherent rights and title are recognized. This is precisely what happened is the case of Delgamuukw v. The Queen, when 35 Gitxsan and 13 Wet'suwet'en hereditary chiefs sued the Crown, claiming title over their traditional territories.

In 1997, they won a partial but significant victory in which the Supreme Court of Canada recognized Aboriginal title for the first time.

Reserves and traditional territories

It is also important to note the difference between "reserves" and "traditional territories." The distinction is once again illustrated by the Indian Act, which designates reserves as a "tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band." By this definition, reserves are owned by the Crown and make up only a minuscule amount of Canada's land.

Traditional territories are larger and much more difficult to define. They are the geographic areas that were historically occupied and used by specific First Nations. The traditional territory of the Wet'suwet'en, at the centre of this issue, represents approximately 22,000 square kilometres of land that was never ceded through treaty. In other words, there is a significant legal question around ownership of the land on which this pipeline is being built. 

Title is not owned by the Crown; at the very least it is shared with — if not exclusively held by — the Wet'suwet'en Nation under the leadership of the hereditary chiefs. Without their approval, the fact that elected band members had approved construction was essentially irrelevant. 

The division between elected and hereditary leaders is no accident. It was engineered by Canadian colonial policies that have disrupted traditional ways and is now strategically exploited to enable access to valuable resources.

The general confusion between elected and hereditary leadership, and reserves and traditional territories, has been used to make it appear as though government and industry have Indigenous consent, while casting land protectors as "protestors" who represent a fringe element. Instead of divide and conquer, it is a tactic of divide and deceive.

Back in December, TransCanada Corp. the company behind Coastal GasLink, applied for an received an injunction from the B.C. Supreme Court to continue work on the pipeline. On the surface, it seemed like a straightforward legal enforcement order. But it did not acknowledge the historical colonial context of the situation, the difference between governance systems within Indigenous communities, or the distinction between reserve lands and traditional territory.

Furthermore, it didn't consider that the federal and provincial governments approved the pipeline without obtaining "free prior and informed consent" from the hereditary Wet'suwet'en title holders, in contravention of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), by which both governments have promised to abide.

Authority over the land

The hereditary chiefs, who won recognition of their title through the Delgamuukw case, assert sovereignty over the traditional territories that this pipeline aims to pass through. So, when they stand upon their territory and refuse to allow Coastal GasLink and the RCMP onto their lands, by their traditional laws, they are the authority and their jurisdiction must be respected.

Until this country is willing to listen to their own Supreme Court and recognize hereditary rights and title, these unresolved issues will continue to end in confrontation. The only way forward is for government and industry to follow the principles of UNDRIP and to work with both hereditary and elected leadership. But as long as they are willing to resort to force instead of diplomacy, we haven't even begun to engage in meaningful reconciliation.

This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.