Introduction
In February 2020, with the consent of five out of the six Wet'suwet’en band councils to a $115 million agreement, but without the consent of the Wet'suwet’en hereditary chiefs, Coastal GasLink pushed on with plans to construct a gas pipeline across Wet'suwet’en territory (Barrera and Bellrichard, Reference Barrera and Bellrichard2020). The Royal Canadian Mounted Police (RCMP) raid and destruction of several access-road blockades, which had been preventing construction crews from accessing the territory, provoked widespread civil disobedience across Canada. Protestors stood in solidarity with the Wet'suwet’en hereditary chiefs, who denied the authority of the band councils to approve land use agreements regarding the Wet'suwet’en's off-reserve territory (Johnson, Reference Johnson2020). The protests most notably took the form of several railway blockades, including a blockade maintained by members of the Mohawk Nation at Tyendinaga outside of Belleville, Ontario. The blockades crippled Canada's national transportation network for several weeks by delaying the transportation of billions of dollars worth of goods, including propane to heat Quebec and the Atlantic provinces and other essential commodities, and by preventing the travel of hundreds of thousands of passengers along the vital Toronto to Montreal railway corridor (Tasker, Reference Tasker2020). The weeks-long blockades caused, at a minimum, tens of millions of dollars in economic costs and provoked a national political crisis in the House of Commons (Panetta, Reference Panetta2020). Throughout this crisis, Prime Minister Justin Trudeau repeatedly expressed the commitment of his government to finding a peaceful resolution to the blockades, as an alternative to force by the RCMP, while nonetheless denying his right as prime minister to direct an ongoing RCMP investigation (Berthiaume, Reference Berthiaume2020).
On March 1, 2020, the Government of Canada, Government of British Columbia and the Office of the Wet'suwet’en Hereditary Chiefs announced that they had come to a tentative agreement regarding a framework to settle the outstanding Wet'suwet’en land title claim, without having settled the underlying pipeline dispute (Brend, Reference Brend2020). On May 14, 2020, the parties released a memorandum of understanding (MOU), signed by all parties. In the MOU, the Government of British Columbia and the Government of Canada recognize that “Wet'suwet’en rights and title are held by Wet'suwet’en Houses under their system of governance” and recognize “Aboriginal rights and title throughout the Yintah.” Furthermore, all parties commit to the immediate commencement of negotiations concerning the transfer of jurisdictional authority to the Wet'suwet’en, with some jurisdictions to be held exclusively by the Wet'suwet’en house-based system of government and with others shared between the federal, provincial and Wet'suwet’en governments (Ministry of Crown-Indigenous Relations and Northern Affairs Canada, 2020). Progress under the framework agreement has been slow and Coastal GasLink continues its efforts to construct the pipeline through Wet'suwet’en territory (Canadian Press, Reference Press2021). As of October 2021, there are renewed efforts to prevent Coastal GasLink from drilling under the Wedzin Kwa (Morice River) by means of new blockades and resistance on the territory (Wilson, Reference Wilson2021).
The Wet'suwet’en case poses two distinct questions. These questions apply to all (Indigenous) nations, and equally to the Canadian state. First, what moral considerations ground the right of a group to use and control a portion of the earth's surface, air, subsurface and resources? For example, what is the value-based moral justification for the Wet'suwet’en people's control over the land they claim? As an example of this right to control, why should the Wet'suwet’en have the right to approve or deny pipeline construction on the land they claim? Call this the problem of territorial rights. Second, what considerations ground the right of a subset of a group's members to make binding decisions relating to the group's territory and occupants? Who has the authority to “speak on behalf of” the Wet'suwet’en or, more concretely, to negotiate and legislate on behalf of the Wet'suwet’en people? As an example of this question: Why do the Wet'suwet’en hereditary chiefs have the right to veto a pipeline across Wet'suwet’en territory even if the Wet'suwet’en band councils approve it? Call this the problem of political authority.
Both problems find application in many other cases of (Indigenous) territorial claims when there are conflicting claims to political authority within a nation. Thus, if we cannot provide a consistent answer to these questions, then from a moral and legal perspective, the MOU between the Canadian government and the Wet'suwet’en hereditary chiefs, and the future relationships between Canada and many other Indigenous nations, are in danger of being carried out in an ad hoc or arbitrary manner. Was the accord between the hereditary chiefs and the Canadian government simply the result of contingent power relations internal to the Wet'suwet’en nation combined with pragmatic factors that the Canadian government faced relating to the blockades? Or is there a principled explanation that constitutes a consistent answer to the problem of territory and problem of political authority?
I demonstrate a plausible solution to these problems by adopting a theory of territorial rights grounded in the value of collective self-determination.Footnote 1 In the first part of the article, I introduce the philosophical concept of territorial rights and outline the justificatory values at the heart of the collective self-determination theory: these are the place-based relationships of group members, grounding individual residency rights to the land the group claims as its territory, and the political autonomy interests of group members in maintaining their own institutions, grounding the territorial rights of the people to collectively control their land. In the second part of the article, I examine the Wet'suwet’en people's patterns of land use and their house-based system of governance. I argue that the Wet'suwet’en people meet the criteria required on the collective self-determination theory to successfully claim territorial rights. In the third part of the article, I discuss the relationship between institutions of hereditary political authority and the values underlying the collective self-determination theory. I consider the objection that collective self-determination requires electoral democracy, thus disqualifying “hereditary” leaders from exercising territorial rights on behalf of the people. I argue that this objection is mistaken from within the parameters of collective self-determination theory. Finally, I consider the argument that there are multiple conflicting yet legitimate institutions of Wet'suwet’en political authority: namely, the house-based system and band councils. I argue that while this is possible, settlers do not have the epistemic access to claim it.
Part 1: What Grounds Claims to Territorial Rights?
Territorial rights are usually conceived of as a bundle of rights and powers to make and enforce law for a territory, control entrance and exit from a territory, and control the extraction and distribution of natural resources from a territory (Miller, Reference Miller2012; Moore, Reference Moore2014, Reference Moore2015; Nine, Reference Nine2008; Simmons, Reference Simmons2001; Stilz, Reference Stilz2011, Reference Stilz2019). For an agent—such as a people or their state—to have territorial rights is for it to have a morally justified claim against competing agents such that other agents must not interfere with the exercise of these powers of territorially demarcated jurisdiction. A theory of territorial rights must explain what value is achieved through the exercise of these jurisdictional powers and must furthermore explain what justifies the exercise of these jurisdictional powers over a particular geographically delimited region of the earth (Miller, Reference Miller2012; Moore, Reference Moore2014, Reference Moore2015; Nine, Reference Nine2008; Stilz, Reference Stilz2019).
By way of example, functionalist theories of territorial rights ground the rights of states to make and enforce law over a territory in the value of basic justice (Buchanan, Reference Buchanan2004; Stilz, Reference Stilz2011; Ypi, Reference Ypi2012). According to functionalist theories, the state is necessary for securing the basic human rights of a population. Functionalist theories contend that the state's exercise of power to make and enforce law for a territory is justified if it passes a threshold for maintaining institutions of basic justice on the territory. While protecting basic justice is necessary for legitimacy, the problem with functionalist theories of territorial rights is that they do not settle the problem of borders, and they license foreign rule in cases where we have settled intuitions to the contrary, such as in cases of colonialism, annexation or failed states (Moore, Reference Moore2014; Moore, Reference Moore2015: 89–111; Moore, Reference Moore2016, Reference Moore2019; Stilz, Reference Stilz2011: 590; Stiltz, Reference Stilz2019: 90–93). Provided we have more than two basically just states, the functionalist theory cannot itself explain how to delimit the geographical area for the exercise of territorial rights, and this becomes especially relevant in cases of conflict. The functionalist theory will leave the resolution of conflicts up to the status quo insofar as it will judge that the state that is in fact maintaining institutions of basic justice over the territory is the legitimate territorial rights-holder (Moore Reference Moore2014; Moore, Reference Moore2015: 89–111).
Alternatively, theories of territorial rights grounded in collective self-determination contend that under the right conditions, a special value in addition to basic justice is achieved in the relationship between individuals and the institutions of territorial governance that exercise political power over them. Anna Stilz and Margaret Moore each argue that this value justifies a group's right to control a particular territory through its own political institutions provided two other independent conditions are in place. First, the political institutions of the group must protect basic justice on the territory (Moore, Reference Moore2015: 51; Stilz, Reference Stilz2019: 117, 157). Second, the group claiming territorial rights must be composed of members who possess individual residency rights to the land claimed by the group or the right to make their life where they reside (Moore, Reference Moore2015: 36–46; Stilz, Reference Stilz2019: 34–85).
Many scholars of territorial rights embrace some version of Walzer's (Reference Walzer1980) claim that for a state or government to have the right to enforce law on a territory, there must be a kind of fit between the common life of the people and the political institutions exercising power over them. As Walzer says: “First, then, a state is legitimate or not depending upon the ‘fit’ of government and community, that is, the degree to which the government actually represents the political life of its people” (Reference Walzer1980: 214). Recent theories of collective self-determination express this “fit” through the concept of political autonomy and the social conditions and political structures that enable it. According to these theories, robust human autonomy partly depends on exercising freedom through relationships in the political realm (Moore, Reference Moore2015; Stilz, Reference Stilz2019). Political autonomy, unlike more passive forms of freedom such as freedom from external constraint, is the active freedom to co-author the social and political world with one's fellow citizens through relationships of cooperation that one reflectively endorses (Stilz, Reference Stilz2015: 8, 16–17).
For Moore, political autonomy of this kind can usefully be understood as (1) a relationship-dependent good, and (2) as an agency good (2015: 62–65). Relationship-dependent goods are goods that are constituted in a relationship between two or more people and which are essentially impossible to realize outside of the relationship (64). Moore argues that it is impossible, for example, to realize the good of parent–child intimacy constituted by the bond between a parent and her child, outside of the relationship between the parent and her child (64). Agency goods, on the other hand, are goods that inhere in specific forms of human activity. For example, many of us think that there is something intrinsically good about leading our lives according to our own informed and reflective judgments about what is good or worth doing, provided we fulfill our obligations to others (65). In the context of human lives in groups, special agency goods “are achieved by shared activities and by co-creating the rules and practices that govern the collective conditions of their lives” (64). Moore argues that by acting together, free from external domination, people sharing a political identity oriented toward maintaining a political project of territorial self-rule are able to be “more autonomous—or experience a different (collective) dimension of autonomy than is involved in most liberal accounts of autonomy” (65). This good is particular to the political relationships among the residents of the territory who share the political identity, as well as active, consisting in long-run jointly intentional activities contributing to the maintenance of a basically just political order on the territory that expresses the people's shared political identity.
Stilz's argument for the value of political autonomy centres on the fact of pervasive coercion in the political realm. For Stilz, individual autonomy is fundamentally “a person's ability to freely conduct her life on the basis of her own judgements and values” (2019: 104–5). Stilz observes that states impose an inescapable and pervasive web of threats and requirements on the individual (107). Coercion or force threatens autonomy because it “deprives the coerce of self-directed agency, substituting the coercer's judgements for her own” (107). State power thus poses significant risk of subjective alienation, or severely diminished individual autonomy, due to its inescapable, comprehensive and coercive nature—that is to say, its capacity to prevent us from being able to live according to values, commitments and desires that we endorse upon reflection for reasons that we authentically affirm (107). Stilz's solution to the problem of alienation builds on the idea that sometimes there is a kind of “correspondence” possible between citizens’ moral and evaluative judgments about the proper structure and operation of their political institutions and the structure and operation of political institutions themselves (104–11, 119–27). Stilz writes that when the state rules and utilizes coercion in such a way that “reflects subjects’ own judgements as to how, and by whom they should be governed, they are enabled to relate in a distinctive way to their state and to the constraints it imposes on them” (107). Stilz writes that under these conditions, “the state is no longer an overwhelming, alien power, but rather a tool that allows her to more effectively carry out commitments that are her own” (107).
As mentioned above, both Moore and Stilz tie the exercise of jurisdiction by a group to a particular territory through the group members’ permissible occupancy of the territory. In order for a group to have the right to self-determine through their own territorial political institutions, each member must possess the right to make their life where they reside and to not be displaced by others. Residency rights are justified by the necessity of secure access to place to maintain morally valuable relationships (such as friendship, family and associational relationships) and located life plans such as vocational, economic and religious pursuits that are tied to a specific place (Moore, Reference Moore2015: 36–46; Stilz, Reference Stilz2019: 34–85). Both theorists observe that we have welfare and autonomy-based reasons to respect the background expectation of agents to secure residency: as human agents we plan our lives against the expectation of secure access to the location of our relationships and plans. Provided we have not wrongfully displaced others from where we have developed place-based interests of these kinds, residency rights protect the background expectations of continued use and access that structure our agency. These residency interests ground the obligations of others to not deprive us of continued access to our relationships.
While it would be impossible to provide a comprehensive analysis of how the proposed theory intersects with Indigenous conceptions of land, due to the plurality of Indigenous nations and their worldviews, here I indicate some possible areas of broad agreement and tension. After noting the possibility of significant disagreement between settler and Indigenous worldviews, I argue that residency and political autonomy considerations can explain groups’ rights-grounding interests in place without assuming robust convergence in worldviews by focusing on basic features of humans’ place-based relationships. Moreover, I argue that the collective self-determination theory explains why unique place-rooted ethical and ontological conceptions appropriately structure Indigenous peoples’ political institutions.
Although there are significant differences in Indigenous theories of human relationships to the natural world, there are also partial convergences between some theorists’ conceptions. For example, as Glen Coulthard explains from a Dene perspective, land is a “system of reciprocal relations and obligations” between natural beings (Reference Coulthard2014: 13). Similarly, according to Anishinaabe perspectives, we are enmeshed in interdependent relationships of reciprocal obligation with each natural entity. These obligations include political (treaty) responsibilities to salmon, deer or moose nations, as well as obligations flowing from kinship relationships with all of creation (Craft, Reference Craft2013; Simpson, Reference Simpson2017). This is a view shared by many Wet'suwet’en people, who conceive of the natural world in terms of interdependent relationships between living elements, special relationships with salmon and animal peoples, and reciprocal obligations of kinship (Morin, Reference Morin2011: 4, 50, 70; Mills, Reference Mills2001: 320). As Mélanie Morin writes from a Wet'suwet’en perspective: “Our oral history reflects our view that the world is as one, with no divisions between the spirit, animal, and human worlds. All three exist at the same time. . . . It is all part of a whole; just as the land is part of the people, the people also belong to the land” (Reference Morin2011: 6).
By contrast, both Moore and Stilz conceive of the connections between people and place as composed of relationships between agents sharing place-shaped needs and projects, overlapping associational, family and professional ties, and interconnected life plans. This view is significantly different than seeing our interest in land entirely in terms of land as a natural resource. However, it is important to point out that Moore and Stilz do not include plants and animals as agents to whom are owed obligations within the framework for occupancy rights and collective self-determination interests.Footnote 2 Similarly, they do not conceptualize our moral relationships with others fundamentally in terms of an evaluative framework of reciprocal kinship obligations that extend to all the world.
I do not here take a position on whether such disagreements are insuperable or whether there is a superior conception. By focusing on place-based relationships, the theory of residency and political autonomy interests renders many of our interests in place mutually intelligible for the purposes of grounding rights to land and political self-determination without requiring a resolution to deeper ethical and ontological disagreements. The theory conceives of place-based interests more adequately than a narrower construal centring human resource interests in land (conceived, for example, in terms of basic needs satisfaction). Moore and Stilz observe that by living in a place, we also develop overlapping located life plans and relationship-dependent interests localized in that place. By centring our non-substitutable relationships to place, settler and Indigenous people may be able to agree that, in addition to needs satisfaction, human place–based interests include rooted life plans and valuable relationships among residents, even if the moral and legal frameworks for articulating the norms for our relationships diverge. Indeed, our ways of thinking about relationships to the natural world may be deeply rooted in our distinct political and legal traditions. Nonetheless, these political traditions are significant for our political autonomy and are thus recognized as morally significant by the proposed theory.
As discussed above, Indigenous worldviews may take the form of relational frameworks that significantly diverge from settlers’ worldviews—for example, in their conceptions of animal agency and reciprocal kinship obligations. A concern for collective self-determination can explain why distinct peoples have a right to maintain these and similar political and legal traditions in the formal structure of their political and legal institutions. The significance of these unique evaluative conceptions for Indigenous collective self-determination is illuminated by Glen Coulthard and Leanne Simpson's concept of grounded normativity. As Simpson explains, grounded normativity is “the systems of ethics that are continuously generated by a relationship with a particular place, with land, through the Indigenous processes and knowledges that make up Indigenous life” (Simpson, Reference Simpson2016: 22). The collective self-determination theory implies that if groups’ authoritative stories, political institutions and legal practices instantiate unique fundamental values for social life developed in this way, then members are at risk of alienation if their social world is instead managed by institutions structured by other groups’ values. As Stilz (Reference Stilz2019) argues, self-directed agency under law depends upon the fit between an agent's evaluative conceptions and the structure of their political institutions. However, evaluative conceptions may diverge significantly given the concrete history of groups’ place-based relationships, as members theorize and negotiate their shared reality together. And as Coulthard and Simpson write: “Our relationship to the land itself generates the processes, practices, and knowledges that inform our political systems, and through which we practice solidarity” (Reference Coulthard and Simpson2016: 254; emphasis in original). Thus, because peoples’ political histories of living together in and with a place may generate unique shared evaluative conceptions for their political institutions, and because political autonomy depends upon a fit between these conceptions and institutions, the political autonomy of Indigenous and settler peoples depends on their ability to freely structure their own territorial political institutions by their respective evaluative traditions.
Part 2: How Does the Collective Self-Determination Theory Apply to the Wet'suwet’en People and the Yintah?
Wet'suwet’en land use
At the time of Delgamuukw v. British Columbia (Supreme Court of Canada, 1997), the Wet'suwet’en population numbered between 1,500 and 2,000 people living on their historical homeland encompassing 22,000 square kilometres in the interior of the Province of British Columbia. The Court reports that there were 30,000 non-Indigenous inhabitants within the 58,000 square kilometres making up the combined territories claimed by the Gitxsan and Wet'suwet’en hereditary chiefs on behalf of their houses (at para. 7-9).
Traditionally, the Wet'suwet’en came together from their dispersed house territories to hold feasts at Dizkle, Kyah Wiget (Witset) and Tse Kya (Hagwilget) on the Bulkley River in the summer (Mills, Reference Mills1994: 38). A large summer population at Kyah Wiget was possible due to the abundance of salmon in the Bulkley, which would also be smoked or dried for the winter (Mills, Reference Mills1994: 40). During the winter, the people would disperse across the broader territory in their house groups to hunt and fish, before attending to the oolichan trade with the neighbouring Nisga'a and Gitxsan in the early spring, returning to their summer fishing villages on the Bulkley River in summer and harvesting berries in the late summer and autumn (Daly, Reference Daly2005: 108–55; Mills, Reference Mills1994: 39). Archaeological evidence suggests that the Wet'suwet’en and Gitxsan peoples and their ancestors have seasonally occupied the summer villages for several thousand years (Daly, Reference Daly2005: 126–27; Mills, Reference Mills1994: 88).
While the traditional cyclical way of life of summer settlement and return to the winter fishing houses on the house territories has subsided somewhat in favour of more permanent settlements, many Wet'suwet’en still rely on the land for subsistence in a mixed gathering/wage-labour economy and otherwise retain strong ties to their house territories in addition to their homes in the villages now “on reserve” (Daly, Reference Daly2005: 108–55, 157, 173–78; Mills, Reference Mills1994: 20–21, 114, 119). Deep connections to house territories are maintained through a variety of land-based activities including living and working on the territory; fishing, hunting and trapping; harvesting plants and berries; smoking fish; preparing food and skins; culture camps; walking and hiking the land; prayer and ceremony; teaching children to hunt, trap, and forage; discussing the history, house territorial boundaries, and law relating to the land; and so on. The Wet'suwet’en people depend on secure access to their territories to pursue these and other intrinsically place-based projects and non-substitutable relationships. Thus, since the Wet'suwet’en have also not wrongfully displaced prior inhabitants, they possess residency rights. These rights provide the basis for their collective claim to control the geographical locale of their place-based relationships and interests through political institutions that they maintain together and that realize their interests in political autonomy.
Wet'suwet’en political institutions
The Wet'suwet’en have a long history of managing the conditions of their common life through their traditional house and clan-based system of governance. The Wet'suwet’en people are a matrilineal society: clan membership and land use rights pass through the mother's side such that, inter alia, one never automatically inherits one's father's rights to use land and never his specific matrilineal title (Mills, Reference Mills1994: 102). There are five Wet'suwet’en clans (Laksilyu: Small Frog; Gilseyhu: Big Frog; Gitdumden: Wolf/Bear; Tsayu: Beaver; Laksamshu: Fireweed), and within each clan are several houses (Mills, Reference Mills1994: 114–15).
Members of houses regard themselves as close relatives who can trace their lineage to a common ancestor, while members of clans regard themselves as more distant relatives (Mills, Reference Mills1994: 107). The highest feast names (“hereditary” titles) corresponding to leadership positions within the house system are those of the house chiefs, followed by house subchiefs, then the heirs to the house chiefs, and then the heirs of the subchiefs (Mills, Reference Mills1994: 113). Through the house and clan system, the Wet'suwet’en have traditionally managed and co-ordinated use of their whole territory among discrete subterritories traditionally connected to each house (Mills, Reference Mills1994: 38).
The central traditional governance institution of the Wet'suwet’en is the bahlat, otherwise known as feast or potlatch. The bahlat constitutes a forum where the boundaries between territories are reiterated; the territorial authority of chiefs is reaffirmed; land use rights and other disputes are gradually settled through multiple public exchanges over time; and titles, rights of ownership and authority are passed along through established protocols and communal witnessing (Mills, Reference Mills1994: 43, 70). All members of the community are allowed to attend feasts (Mills, Reference Mills1994: 45). There are several types of feast meeting. Here I can only briefly describe some protocols of some feasts.
The all-clan meeting serves the function of reaffirming house territorial boundaries, recognizing individual permissions of passage and use of other houses’ territories and negotiating disputes over infringement of rights between house groups (Mills, Reference Mills1994: 44–60). At these meetings, disputes over use rights are gradually resolved over time through speeches by chiefs and those who remember the history of the land, dialogue and reciprocal exchange of gifts (Daly, Reference Daly2005: 31–47; Mills, Reference Mills1994: 44–60). Relations with foreign nations (such as Canada) and oil companies (such as Enbridge and Coastal GasLink) are also discussed through a variety of clan-based meetings and feasts.
At the funeral feast of a chief with title over land, the deceased chief's successor is named. At a headstone feast, approximately one year later, the name, robes and crests of the deceased chief, along with ownership and authority over the house territory, is passed on to the chief's successor (Mills, Reference Mills1994: 65). House chiefs usually appoint an heir before their death, who must host the headstone potlatch in order to assume title lest their claim lapse (Mills, Reference Mills1994: 66, 117). In the absence of an heir, or in event of a lapsed claim, the chiefs from the other houses of the clan nominate a successor who must host the requisite potlatch to inherit the traditional name, crests and territorial authority of the deceased chief (Mills, 66). Mills reports that while sons and daughters of the house chiefs are most often conferred titles and chosen as heirs, the Wet'suwet’en do not have a “closed class system”; rather, “the head chiefs choose their heir from all possible candidates in their house” (Mills, Reference Mills1994: 117). All Wet'suwet’en children are carefully trained to learn the oral history of their people's relationship to the land, animals and other nations and, in turn, the traditional mechanisms of self-government, in part through feast attendance and walking the land with relatives (Mills, Reference Mills1994: 74, 117). More distant relatives of the house chief may be given titles and signalled as heirs based on their responsiveness to training and their individual responsibility (Mills, Reference Mills1994: 116–17).
Mills recounts that in order to assume title or a hereditary name, in part due to the financial costs of the transition through the feast system, “a person must have the full moral and economic support of his or her clan, his or her father's clan, and his or her spouse's clan” (1994: 67). This point is echoed by anthropologist Richard Daly who stresses that given the considerable financial costs and labour involved in maintaining the feast system, along with the demanding, ongoing and reciprocal/competitive gift exchange economy in which it is embedded, it is necessary for leaders to have the full support of their clan and that of their relatives in other clans (which relatives, in which other clans and houses, depending on the specific feast and its protocols for sharing the burden of labour and resources) if they are to be able to attain and maintain their status (Daly, Reference Daly2005: 57–106, 194–208). As Daly reports: “A chief's de facto standing is always in a state of flux, although it becomes increasingly consolidated over time through the proper hosting of feasts” (201). Similarly, Daly reports that the consolidation of power beyond house groups is frowned upon by Wet'suwet’en and Gitxsan people, who have “an extreme sensitivity to issues involving personal dominance” (204). Chiefs are often challenged by members of their own matrilineal houses, whose own statuses do not depend on the chief (202).
Thus, while the Wet'suwet’en house-based system of traditional governance is not democratic in the Western sense with its focus on strict election cycles and the equal formal decision-making authority of citizens (for example, each citizen receives one equally weighted vote at each election, where the results are determined by majority voting), the house-based system decentralizes political power among clans and houses while requiring significant and ongoing intra- and inter-house co-ordination. Moreover, it requires the active and ongoing support and participation of clan members to successfully function over time as a procedure for political decision making and dispute resolution.
In addition to the feast cycle, the house chiefs manage a large administrative structure with several departments and programs (Office of the Wet'suwet’en, 2020a). In 2018 the office had approximately 40 full-time employees throughout several departments, including Administration, Human and Social Services, Natural Resources, and Fisheries and Wildlife (Office of the Wet'suwet’en, 2020b). Along with work on the Wet'suwet’en title claim, treaty politics and review of land/resource development proposals, the office manages several community-based programs including a frontline outreach program for Wet'suwet’en people in several British Columbia cities, an early childhood development program and several programs related to Wet'suwet’en law, constitution drafting, criminal justice and alternatives to the Canadian judicial system (Office of the Wet'suwet’en, 2020c). The Office of the Wet'suwet’en is not to be confused with any of the Wet'suwet’en band council governments.
Bringing it all together: How does the collective self-determination theory evaluate the Wet'suwet’en people's territorial claim?
To summarize the collective self-determination theory of territorial rights:
A group must satisfy all of the following conditions to successfully claim territorial rights over a particular territory.
(1) Basic justice. The group must be willing and capable of providing “the standard package” of basic human rights, including civil, political, cultural and subsistence rights for all residents, which Stilz observes are the preconditions for authentic reflective endorsement in any society (Patten, Reference Patten2014: 150; Stilz, Reference Stilz2019: 117). In the event the group cannot maintain all basic functions of a state through its own political institutions, this condition may be satisfied by the group sharing some responsibilities with another group or the wider state (Moore, Reference Moore2015: 47–52; Stilz, Reference Stilz2019: 136–38).
(2) Individual residency rights. The group claiming territorial rights must be composed of members with individually legitimate claims to reside upon the lands that they collectively claim as their territory (Moore, Reference Moore2015: 36–46; Stilz, Reference Stilz2019: 34–85).
(3) Collective self-determination. (a) The group members must reasonably reflectively endorse their intention to cooperate with the others in the activity of maintaining the social and political world through their own political institutions on the territory they claim (Stilz, Reference Stilz2019: 117). (b) There should be an objective public history of political cooperation by the group claiming territorial rights (Moore, Reference Moore2015: 50–54). (c) The group must form a territorial majority on the lands that they claim (Moore, Reference Moore2015: 118–22). (d) Internal minorities dissenting from the territorial institutions ought to be accorded similar rights to territorial self-rule if they satisfy conditions 1, 2, 3a, 3b and 3c themselves.
I will now apply each of the conditions required to successfully claim territorial rights to the Wet'suwet’en people:
(1) The Wet'suwet’en, like the Gitxsan, maintain a “comprehensive, non-state, decentralized legal order” premised upon formal dialogue for seeking individual consent and public legal norms for the co-ordination of self-directed interaction in groups (Napoleon, Reference Napoleon, Webber and Macleod2010: 46, 58; Napoleon, September 2020, personal correspondence). The legitimacy of any Wet'suwet’en government, like all governments, depends on its respect for basic human rights. The Wet'suwet’en people, for as long as they remain committed to protecting the human rights of everyone on their territory through their political institutions, are candidates for territorial rights.
I do not believe this condition is especially challenging for Indigenous peoples.Footnote 3 We should not assume Indigenous peoples do not strive to govern themselves according to the standards of international legitimacy such as embodied in the United Nations covenants on human rights. Indigenous peoples often strive to meet similar ideals for reasons internal to their own worldviews and philosophies. As discussed in the first section, Indigenous conceptions of land, which often stress the reciprocal interdependence of the health and well-being of people, land and animals, embody an underlying ethos of mutual responsibility and mutual aid sufficient to protect subsistence rights (Coulthard, Reference Coulthard2014; Craft, Reference Craft2013; Simpson, Reference Simpson2017). This is an ethos materialized in the gift-giving practices of the coastal potlatch system, the robust sharing practices of Indigenous hunters and fishers, and the responsibility of chiefs to steward the well-being of the people (Mills, Reference Mills1994: 56, 63; Weiss, Reference Weiss2018: 140–41). Similarly, Indigenous philosophies often stress non-interference with others’ judgment in pursuit of a good life while regulating human conduct through law (Borrows, Reference Borrows2016; Napoleon, Reference Napoleon2013). Indigenous nations can demonstrate a practical convergence on human rights practices without adopting the prevailing liberal theories underpinning Western human rights discourses.
(2) The Wet'suwet’en have occupied their homeland for millennia. As discussed above, the Wet'suwet’en depend on secure access to their homes, communities, fishing places, hunting ranges, berry-picking grounds and other places in order to live out reasonable life plans that they individually affirm, that realize their basic human needs and capabilities, and that allow them to attend to their relationships and obligations. Therefore, the members of the Wet'suwet’en people have residency rights to their homeland.
(3a)–(3b) In order to manage their relationships among themselves, relationships to land and relationships to outsiders, the historic Wet'suwet’en political system and legal order has survived the continuous efforts of colonial authorities to abolish it. Despite the contact-era Durieu system of Christian theocracy, Indian Act efforts at national division and assimilation through the imposition of six band council governments, and the prohibition of the potlatch by the Canadian government between 1885 and 1951, feasts and traditional governance activities continue to be well attended (Antonia Mills, July 2020, personal correspondence). Similarly, despite the genocidal Canadian residential schools, systematic underfunding of services, and historic and ongoing territorial rights violations, the members of the community at Witset continue to extensively support their house and clan system and a contemporary Wet'suwet’en way of life that balances participation in the settler labour economy with economic reliance on and enjoyment of the seasonal round of hunting, fishing and gathering on house territories (Daly, Reference Daly2005: 128–29). Consider also the long-run Delgamuukw campaign in the Supreme Court, the anti-pipeline campaign, and the success today of the Office of the Wet'suwet’en in managing a plethora of social programs. All of these facts provide evidence that Wet'suwet’en people strongly reflectively desire to govern themselves according to their own institutions and values, that they have demonstrated an objective public history of political cooperation, and that they have the collective capacity to maintain political institutions.
(3c) There is some demarcation of traditional Wet'suwet’en land, in which the majority of the people who reside there and/or depend upon the land to pursue their life plans are Wet'suwet’en. Here, the Wet'suwet’en people have legitimate territorial jurisdiction over those legal jurisdictions that they claim exclusively as their own and that they are capable of exercising in accordance with human rights. On these lands, the Wet'suwet’en are also entitled to exercise shared jurisdiction in areas they would prefer to manage in consensual collaboration with some combination of the federal government, provincial government or other First Nations governments. In jurisdictional areas over which the Wet'suwet’en would prefer exclusive jurisdiction but lack capacity to exercise exclusive jurisdiction due to shortfalls of institutional resources (such as money, equipment or training), we should not overlook the fact that Canada likely possesses extensive sui generis reparative obligations for systematic historical territorial rights violations. In substance, Canada's corrective or reparative obligations may require Canada to help the Wet'suwet’en (through resource transfers, for example) to exercise these further jurisdictions they would claim.
(3d) To my knowledge, there are not groups of sufficient size with residency rights in the area I have described in (3c) that meet conditions 1, 2, 3a, 3b and 3c. Settlers form local majorities in cities, towns and villages that are not included in (3c), and there they are entitled to incorporation within the Canadian state and the jurisdiction of provincial and federal political institutions (provided the conditions for territorial rights are met by settler institutions). In areas of extensive population overlap or overlap in distinct uses by settlers and Indigenous people that are both vital for the individual well-being and autonomy of settlers and Indigenous people, the collective self-determination theory recommends mutually consensual territorial co-management regimes maintained by an evolving treaty framework.
Therefore, as the Wet'suwet’en satisfy conditions (1)–(3d), the Wet'suwet’en possess territorial rights to their traditional homeland according to the collective self-determination theory of territorial rights. The Wet'suwet’en possess inherent rights, flowing from their relationships to one another and to their land, to manage their territory through their own political institutions.
Part 3: The Democratic Objection
The objection contends that whether or not the Wet'suwet’en people satisfy the conditions for territorial rights, the historic governance institutions cannot exercise these rights on behalf of the Wet'suwet’en people because “hereditary” political authority is inconsistent with the moral reasons for recognizing territorial rights of groups in the first place (political autonomy through correspondence, as discussed above). Instead of directly engaging with the much wider debate about the value of democracy, I will show why the realization of the value of collective self-determination by a group does not always require them to maintain democratic decision-making procedures to exercise their territorial rights.
From the perspective of collective self-determination theory, what fundamentally matters to the realization of autonomy under political institutions is each individual's reasonable reflective endorsement of their participation within jointly intentional relationships of social and political cooperation that help maintain the political system administering a public conception of justice on the territory. Thus, if members of political systems premised upon hereditary decision-making procedures reasonably reflectively endorse their intentions to sustain those systems, then each can properly view themselves as actively engaged in maintaining their social and political world when they cooperate with fellow citizens to maintain their state or governance system.
To venture a few culturally specific examples: Wet'suwet’en people who participate in potlatches and feasts by preparing food, contributing money or making speeches; or who settle disputes regarding ownership and land use rights through the feast system and Wet'suwet’en law; or who go to community or clan-based political consultations or information sessions about development proposals; or who meet to discuss politics, form citizens’ coalitions, or question their leaders; or who heed the call of their elders to defend their land-based way of life from invasion by pipeline companies—all can be understood as working together to maintain their own social and political world. Provided those so acting reflectively endorse this jointly intentional cooperation to maintain the system, they will be able to relate to coercive elements of their legal system as extensions of their own will and to otherwise view the social and political world as a non-alienating co-construction that reflects their own values, commitments, and priorities.
Still, the democratic objector might be unconvinced. In democracy, the objector might contend, individuals are related to the selection of the laws, policies and practices of the state insofar as they have a formally equal input in selecting the leaders who determine those laws, policies and practices. However, in hereditary systems, only those selected to be the leaders have the formal power to make decisions, and citizens do not necessarily have an equal say in who becomes a leader. Insofar as autonomy consists in leading life in accordance with one's own informed judgments, then only democracy promotes the realization of a social and political world that citizens can identify with and properly view as their own co-construction, because only then are citizens’ judgments and actions, through voting for leaders who legislate, related to the selection of the laws, policies and practices that place requirements on them (in turn, threatening autonomy, as discussed in the first section).
My response to the democratic objection relies upon Anna Stilz's rejoinder to skepticism about the possibility of political autonomy even under electoral/democratic decision-making procedures. Stilz observes that given the pervasive disagreement over values and state objectives that characterizes modern pluralistic democracies, it seems difficult to imagine that there could be consensus among the majority of citizens of any state as to how the state should operate in terms of specific first-order laws, policies and practices (2019: 108). Consider policy areas such as property rights, taxation, redistribution, healthcare and gun control. On perhaps the majority of specific issues that matter to them, citizens will be outvoted by their co-citizens on their preferred choices and forced to live under the dis-preferred policy, posing the problem that citizens are “ruled by the majority” rather than their own judgments (2019: 106). How does territorial self-rule further individual autonomy under conditions of pervasive disagreement and out-voting?
To address this skepticism with the possibility of political autonomy under democratic institutions, Stilz introduces a fundamental distinction between first-order and second-order correspondence. The shared intention among citizens to cooperate with one another—for example, the intention to act together—which enables correspondence between individual evaluative judgments and the operation of the state through citizens’ jointly intentional action, is said to be a shared intention to support specific institutions structured by second-order values (2019: 108–9). In other words, the correspondence required for political autonomy under law pertains to citizens’ second-order values and the institutions that govern them, rather than first-order values, such as specific policy preferences.
For example, those who affirm their cooperation within the Canadian state are arguably committed to some overlapping set of second-order values, including constitutionalism, judicial review, federalism, parliamentary democracy at the federal and provincial levels, and the division of powers (specific institutions), as well as liberal freedoms, equality, affirmative action, official bilingualism, multiculturalism and multinationalism (specific procedural and substantive values to structure those institutions and deliberation within them), where these institutions are maintained collectively by those fitting the legal definition of “Canadian citizens” (a specific set of co-cooperators). Stilz's argument suggests that as long as Canadians affirm cooperation with one another to maintain institutions structured by these or similar second-order values, then they are able to relate to particular Canadian laws, policies and practices as reflective of their fundamental commitments and of their own collective making. Thus, even if the group to which one is committed departs from one's own first-order judgments in enacting some policy, since one values the collective enterprise itself (one intends to support specific institutions, structured by specific second-order values, maintained by specific co-cooperators), Stilz says “there is an important, second-order sense in which my priorities are reflected in those decisions” (2019: 109).
Notably, this second-order level, in the case of Wet'suwet’en people, could include the institution of the house-based system of land rights, Wet'suwet’en law and bahlat political decision making (specific institutions) and the exercising of power in light of values found within Wet'suwet’en law—such as respect for individual consent, clans and houses and the land; reciprocal gift-giving; special respect for salmon and animal nations, water and forests; respect for ancestors and spiritual beings; and so on (specific political values)—where these institutions are maintained by the willing cooperation of Wet'suwet’en people (specific co-cooperators). If the relevant individual endorsement attitudes are indeed actually in place, it is through willing participation in the jointly intentional practices that sustain the house-based system of government structured by Wet'suwet’en legal and political values that Wet'suwet’en people co-author their social and political world.
It is important to distinguish Indigenous clan-based governance institutions, exemplified in this article by the Wet'suwet’en historic governance system, from caste systems.Footnote 4 Caste systems distribute basic rights, resources and opportunities for meaningful political participation in unequal ways on the basis of differential caste statuses usually assigned at birth. On the theory I advance here, caste systems are illegitimate vis-à-vis those who are disadvantaged by hierarchy. Caste systems often intentionally undermine the basic rights of subordinated groups or leave subordinated groups systematically vulnerable to violence, eliminating legitimacy on the first condition for territorial rights. Of equal importance, caste societies, by denying civil rights and/or equal social standing to subordinated groups, preclude the conditions for reflective endorsement of political cooperation by subordinated members and/ or otherwise prevent meaningful participation in the deliberative activities at the heart of self-determination. By denying social standing and political voice to subordinated members, castes deny adequate participation in the deliberative practices at the heart of collective self-rule, eroding the sense in which caste members can meaningfully engage in collective authorship of a shared political world that reflects shared political commitments.
The historic Wet'suwet’en governance system is not a caste system. Members of different houses and clans do not occupy superior and inferior social statuses affecting access to basic rights, opportunities or political participation. Non-chiefs are not social inferiors to chiefs but instead are vital contributors to the upkeep of the overall system. All Wet'suwet’en members are able to participate meaningfully in public deliberation and are integral to the continued power of chiefs and the success of clan-based political decisions. The Wet'suwet’en are a people with robust norms of horizontal contestation, accountability and open public deliberation. As part of a small and largely face-to-face community, Wet'suwet’en citizens may be able to participate more effectively in meaningful public deliberation and political contestation than citizens of large and anonymous societies practising representative democracy with fixed election cycles.
Thus, the democratic objection is misguided. It conceives of collective self-determination in such a way as to eliminate the value of both democratic political institutions for settlers and “hereditary” institutions for the Wet'suwet’en people. Routine electoral democracy is valued by most settler Canadians but not because it enables them to somehow have control over first-order laws, policies and practices and to, in turn, achieve first-order correspondence. Therefore, the democratic objection does not, in fact, challenge the political authority of Wet'suwet’en hereditary institutions on the grounds that cyclical electoral political authority structures are necessary for collective self-determination. In principle, the Wet'suwet’en may exercise their territorial rights through their traditional governance system. Indeed, the historic system of political authority may be the best system for Wet'suwet’en people to realize correspondence between their political institutions and their fundamental commitments and values because it may best reflect their shared values for political cooperation, in turn enabling them to access important relationship-dependent agency goods and promoting their individual autonomy under law.
Conflicting claims to political authority and the problem of epistemic access
One reason the recent pipeline issue has been so challenging is that Wet'suwet’en people could endorse both the band councils and the historic system as decision-making procedures to enable collective control over their territory. For example, it is possible that Wet'suwet’en people could come to reflectively endorse a multi-tier system that incorporates electoral democracy at some level exercising some jurisdictions, in conjunction with the historic system at another level exercising other jurisdictions.
It is worth reiterating that the band councils were imposed by the settler state to replace the feast system, to fragment and municipalize nations and to assimilate Indigenous peoples into the settler state. On the self-determination theory, the imposition was without any Wet'suwet’en authority and certainly violated their territorial rights by changing the jurisdictional scope, procedural form and membership of their political institutions without their free, prior and informed consent. However, the institutions themselves may have developed some authority over time, perhaps as some form of limited and local municipal governments within a larger Wet'suwet’en national system. This would be possible if the majority of Wet'suwet’en people now freely reflectively value some components of electoral democracy as a procedural form for making some political decisions. Thus, one way to interpret the competing claims to authority would be that there is a colonially induced constitutional conflict internal to the Wet'suwet’en nation. On this view, while the Wet'suwet’en people have territorial rights, it is indeterminate within the Wet'suwet’en political order itself which institution has specific jurisdiction over land use, resource development or foreign affairs.
However, the patterns of endorsement and second-order evaluative judgments of Wet'suwet’en people, which are essential to the justification of specific political authority structures governing specific jurisdictions on the collective self-determination view, are not readily accessible to settlers. Nor can these be inferred immediately based on data about public attendance at feasts, for which there might be nonpolitical reasons to attend, such as the desire to enjoy cultural goods.Footnote 5 Nonetheless, taken too far, this idea risks ignoring the argument that the feast is a complex social, political and legal practice whose primary social meaning is the assertion, negotiation and consensual recognition of political and legal claims through entrenched Wet'suwet’en customary law. The Wet'suwet’en maintain this political and legal system through hard work and personal sacrifices despite colonial domination and the presence of political alternatives in the form of the band council governments. So the survival of the feast system through the colonial onslaught does provide outsiders with evidence for Wet'suwet’en reflective endorsement of that institution of political and legal authority and the fundamental second-order values it uniquely best realizes; however, attendance rates are not themselves conclusive evidence that the historic system uniquely best reflects the people's fundamental commitments and values.
Participation in band council elections provides even less evidence about individual attitudes of reflective endorsement. While voting in a band council election could, for various reasons at various times, be believed to be the right thing to do by various Wet'suwet’en people, this does not indicate reflective endorsement of the band council system or reflective endorsement of a band council component in the Wet'suwet’en governance system. Instead, participation in the band council system could be resented as an illegitimately compelled necessity to receive recognition as a people, reparations for past injustice, basic services or essential resources from the dominant settler state institutions. Similarly, a failure to vote in a band council election does not necessarily indicate a lack of endorsement of a band council component in the governmental system, as there are many reasons why individuals fail to vote in elections.Footnote 6 So outsiders cannot easily interpret mere participation in bands councils as clear evidence of endorsement, as participation may be the result of background coercion and domination by the settler state. Notably, this critique that background domination renders participation an unclear sign of consent applies to the treaty process itself (Alfred, Reference Alfred2001; Nadasdy, Reference Nadasdy2003; Coulthard, Reference Coulthard2014; Hendrix, Reference Hendrix2019: 78–86).
While the actual endorsement attitudes and the fundamental political values of Wet'suwet’en people are not immediately knowable by outsiders, the patterns of endorsement and values of the Wet'suwet’en people are likely to be known by members of the people out on the land freely engaging with one another in political conversations about their reasons for supporting potlatches, or for voting in band council elections, or otherwise discussing their shared values as a people going forward. Thus, there may be no question among the majority of Wet'suwet’en people themselves about which institution is, in fact, an authority on this issue—or an authority at all—insofar as they know what the majority of Wet'suwet’en people do, in fact, value.
The extent of asymmetrical access to Wet'suwet’en values and norms is not necessarily permanent. The complicated process of recording the Anuk Nu'at’en (inherent Wet'suwet’en law) and drafting a written Wet'suwet’en Constitution has been ongoing for several years. This process has culminated in a draft Wet'suwet’en Constitution, which is being reviewed internally by clan members (Office of the Wet'suwet’en, 2021: 2). This community-driven work, flowing out of the clan system and community dialogue, may rearticulate inherent Wet'suwet’en legal understandings and may help outsiders better understand the relationship between Wet'suwet’en political institutions, such as the clans, hereditary chiefs, band councils and feasts.
While community-driven referendums do provide significant evidence of collective aspirations, and it would render any government illegitimate to stifle the free assembly and deliberation of residents about their shared future, settler-imposed referendums may be manipulated by the background political, economic and legal context structuring Indigenous–state relations at a given time and may otherwise fail to reflect long-run aspirations for self-determination if taken prematurely.Footnote 7 For example, by making recognition of negotiating authority or recognition of further self-government rights contingent on a referendum, the Canadian government could place Wet'suwet’en citizens in a position where they are pressured to prematurely modify their political system in order to achieve specific goals, such as economic development or robust self-government, when there was some alternative downstream of internal politics that would, in the long run, better reflect Wet'suwet’en aspirations and achieve moderate consensus about the division of authority. Indigenous legal processes and deliberation driven by community debate and citizen contestation may be able to better rebuild political unity and foster self-determination in communities where colonialism has both sowed division between those who work in different institutions and fragmented nations sharing language, land and laws into multiple legally distinct bands.
Respect for Wet'suwet’en self-determination requires assurance of respect for Wet'suwet’en territorial rights irrespective of the results of sustained internal politics concerning the precise constitutional structure of Wet'suwet’en society going forward or the specific legal determinations of Wet'suwet’en political authorities within their spheres of territorial jurisdiction.Footnote 8 Eventually, a referendum on a codified constitution may be necessary for reasons internal to Wet'suwet’en law. However, it would further dominate the Wet'suwet’en for the Canadian state to unilaterally impose a referendum on political authority, potentially warping the work of Wet'suwet’en legal processes, deliberation and reunification efforts, in order to bring immediate economic certainty for pipeline companies. Nor should the Canadian government expect the Wet'suwet’en Constitution to necessarily mirror other Indigenous constitutions in the region, such as the Nisga'a Constitution. Wet'suwet'en law, like the land and law of any people, is not substitutable for that of another.
Conclusion
I have argued that on the collective self-determination theory, the Wet'suwet’en people possess territorial rights to their homeland—rights that are grounded in a special kind of agency good for the members of the people. Moreover, I have argued that on the same theory, we can see the contours of the justification for the political authority of their historic house-based system of government as the specific structural mechanism for the exercise of territorial rights. As I have demonstrated, the justification for group rights of control over land is closely connected to the justification for the specific political authority structure that makes and enforces law for the occupants of the territory. In each case, the justification for rights flows from the value of political autonomy for the group members. Finally, my analysis should demonstrate reasons why the house-based authority structure could best promote the political autonomy of Wet'suwet’en people compared to alternatives—namely, the fact that the historic system could best instantiate the fundamental reflective commitments of Wet'suwet’en people.
Acknowledgments
I would especially like to thank Margaret Moore, Will Kymlicka and Arthur Hill for many critical discussions on earlier drafts. I am also grateful for the comments of Antonia Mills, Val Napoleon, Dale Turner, Robert Boissonneault and Thomas Slabon. Many thanks also to audiences at the Queen's University Philosophy Graduate Colloquium (November 2020), Canadian Philosophical Association (May 2021) and three anonymous reviewers at the Canadian Journal of Political Science for their helpful questions and feedback. Finally, I would like to thank those at the Likhts'amisyu village (Parrot Lake) for their incredible kindness and generosity.
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