Who speaks for the disenfranchised? In an era that is rightfully and finally turning its attention to reconciliation, this is a question that North American society is grappling with on a regular basis. As a general rule, the often unsatisfactory but intellectually correct answer lies in the existing modes of political representation. States are governed in accordance with a Constitution which defines the terms under which the governed agree to be bound by the terms of whatever authority has been created to make decisions on behalf of the collective, be that a democracy, monarchy or autocracy. Those terms can and usually do include provisions under which the Constitution itself can be updated, but it is also almost always the case that the terms under which the rules can be changed are fairly onerous, as we can see from the American challenges in introducing gun control legislation in a country that constitutionalized the right to bear arms.
So Constitutions are marvelous things. They document the terms under which a population has agreed to form a state, and they provide minimum guarantees of rights and processes that immigrants can evaluate in their decision to seek to join such a state. So everyone has been provided for, right? Not quite. The US has a large population that are the descendants of people who did not make an even remotely voluntary decision to subscribe to the Constitution. They were brought to the country on slave ships, and never had any say in the subsequent adoption of the Constitution that never even recognized them as individuals to whom the benefits of that document accrued until the passage of the 13th, 14th and 15th amendment to the Constitution following the end of the bloodiest Civil War in the history of the world. Since that time, all African-Americans, including those descended from former slaves have struggled to find a truly representative voice in the political system that they neither had a role in creating nor provided their consent in joining.
As difficult as that experience has been and continues to be, Canada finds itself with an even more difficult integrative exercise. By the time of the Civil War, no American slave had been born outside of the US and the institution of slavery. They had accordingly never participated in an alternative collective governance model that even purported to be consensual or under which they had agreed to the imposition of restrictions on personal liberty in exchange for collective benefits. That was and is not true of Canada’s Indigenous population. Those populations lived in functioning communities that had their own unique and long established governance models. Colonial powers purported to honour their status as individual nations by using treaties, not conquest, to establish the terms under which each would assert sovereignty over land and people. However unreasonable or incomplete those treaty bargains may have been, there is no escaping the central fact that Colonial governments never purported to entirely extinguish the sovereignty of Indigenous peoples. Ignore, subvert and denigrate certainly, but never extinguish.
So Canada finds itself in an interesting position in this era of reconciliation, particularly as it relates to resource development. Canadian courts have imposed upon commercial interests the obligation to consult with First Nations with respect to the development of lands in which they have an historical connection. But who speaks for such nations? In the recent case of the Coastal GasLink natural gas pipeline, TC Energy, the developer of the new pipeline, has not only consulted with but obtained the consent of the elected band councils of each of the clans of the Wet’suwet’en nation of Northern BC to the proposed development. Nonetheless TC Energy finds itself effectively hamstrung by protests and blockades on the proposed site led by the hereditary chiefs of many of those same clans.
Asked to assess the legitimacy of each of these purported representatives of these Indigenous populations, it is a fair guess that most Canadians would favour the elected representatives. But those elected councils derive their authority not from a Constitution consented to by the governed but from a governance model imposed under the terms of the Indian Act by representatives of those that hope to do business with the governed. Are they more representative than hereditary chiefs? Maybe, probably, but that is for the governed to decide.
What this really says is that each First Nation needs a Constitution that creates a mechanism through which their participation in consultations can be governed. This exercise in nation building cannot be led by even the most well-meaning of non-Indigenous advisers and allies. Fortunately, the recent eruption of reconciliation initiatives has revealed that there is no shortage of Indigenous leadership with expertise and interest in this sort of project. To capitalize on the opportunities for truly inclusive economic development presented by this era of consultative reconciliation, this process has to begin yesterday.
