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Field notes from the Haida Gwaii Potlatch: Why government and industry should take heed of Indigenous governance decisions

September 13, 2016

 

Mug shot: One of the gifts from the potlatch – “Raven Always Sets Things Right”

Yo ho wee
Yo ha wee yo wee yah
Hey hi yo
Ha wee ah wee yah wee yah
Hey hi yo ha wee
Ah wee ah-ha
Ah wee-ee ah wee yah

The crowded hall erupts in cheers, clapping and screaming as the Haida dancers begin their exit at the end of a long day. Eagle down floats through the air as thunderous drums keep a steady beat.

Yo ho wee
Yo ha wee yo wee yah
Hey hi yo
Ha wee ah wee-ee ah wee yah
Hey hi yo ha wee
Ah wee ah-ha
Ah wee-ee ah wee yah

More clapping and singing as a sea of hundreds of blue ‘United Against Enbridge’ placards are raised in unison.

This was the scene at the end of a historic potlatch held in Old Masset, Haida Gwaii last month. The emotions were intense and palpable. Celebration. Relief. Exhaustion. Joy. Pride.

The song, the Coming into the House Paddle Song, became known as the Lyell Island Song after the forestry standoff of 1985 – itself an historic moment in the assertion of Indigenous decision-making against resource companies that set the stage for future historic legal victories. At the 2010 House of Assembly, the Lyell Island Song was adopted as the national anthem of the Haida Nation.

It was a full house of over 500 at the potlatch and feast. Photo: Eugene Kung

Witnessing history

I was honoured to have been invited to witness this historic potlatch, Raven Always Sets Things Right, hosted by the Yahgulaanaas/Janaas Raven Clan of Haida Gwaii. I visited Haida Gwaii for the first time just last year, and it left an indelible mark as a very special part of the world, as it does for most who are lucky enough to visit, so I was happy to return.

The potlatch was significant for a number of reasons. The primary work was to remove the hereditary chieftainships of two hereditary chiefs. The hereditary chiefs had signed a support letter for Enbridge’s request for a deadline extension on one of the 209 conditions of its approval in June 2014. No one I spoke to could remember hearing about an act as serious as removing a chieftainship before, although the possibility of the removal of a name is part of the chief naming ceremony itself.  The removal of the hereditary chieftainships in this potlatch needs to be understood by industry and governments as a legitimate and powerful response that undermines the commonly used tactic of cherry picking individuals to support their projects and “divide and conquer” communities.

Photo: Christine Martin via Facebook

On Indigenous governance

Governance and leadership in Indigenous communities is often separate from the Indian Act elected Chief and Council. Traditional leadership varies from community to community, and can overlap with Chief and Council at times or can be completely separate. In Haida Gwaii, for example, there are 33 clans (Raven or Eagle) with hereditary chiefs, who are appointed by the matriarchs of the clans. As a matrilineal society, clan membership follows mothers. The Council of the Haida Nation, which is the political body, has incorporated a Hereditary Chiefs Council into their organization as a way of maintaining traditional decision-making and challenging the Indian Act system.

Potlatch ban and Indigenous law

Potlatches, along with Sun Dances and other ceremonies were illegal under Canadian law for nearly 70 years under the Indian Act, from 1884 until 1951. The intent and effect was to disrupt and destroy existing forms of Indigenous law, teachings and governance. However, Indigenous laws survived and continue to be practiced today in various ways.

Canadian Courts have recognized that Indigenous laws have not been extinguished by Canadian law. Indigenous laws are part of the governance rights affirmed and protected under section 35 of the Canadian Constitution.

However, Canadian courts have historically struggled to incorporate a largely oral tradition into the written tradition of western legal systems. This challenge was noted by Justice Vickers, who presided over the original trial that led to the historic 2014 Tsilhqot’in Supreme Court of Canada (SCC) decision. Vickers noted (at para 132):

In order to truly hear the oral history and oral tradition evidence presented in these cases, courts must undergo their own process of de-colonization.

Revitalizing Indigenous Law for Land, Air and Water (RELAW)

As part of our longstanding work in support and in service of First Nations, West Coast Environmental Law recently partnered with the Indigenous Law Research Unit at the University of Victoria, Faculty of Law (ILRU). West Coast and the ILRU share the fundamental belief that Indigenous law is law, that Indigenous laws are part of living Indigenous legal orders, and that Indigenous law can and should be used on the ground today.

RELAW is now well into its first cohort, which is working with six First Nations in BC to revitalize and apply their own laws. We hosted our second learning retreat in Squamish territory the week after the Haida potlatch, and invited a representative from the Yahgulanaas/Janaas clan to discuss this recent application of Haida law. Yahgulaanaas/Janaas Chief Darin Swanson connected us with Christine Martin, a Haida and Tsimshian woman, and Executive Director of Vancouver Aboriginal Transformative Justice Services. Christine provided valuable insight and reflection on the potlatch and events leading up to it. Below are some highlights (some paraphrased) of her presentation:

Christine Martin (centre) at the feast. Photo: Christine Martin via Facebook

In April, we got a phone call following a Facebook group post about Chiefs signing on with Enbridge. The clan held a series of meetings to try and figure out what was going on. We weren’t on a witch hunt, we wanted to find out from them what this entailed because we didn’t know.

Eventually, we held a meeting which the chiefs attended. The Aunties [matriarchs] were there. They wanted answers from their nephews about whether they’d signed anything with Enbridge. They said, “We didn’t sign nothing.”

At that point, the clan didn’t plan anything – we gave them the benefit of the doubt. But the Aunties said clearly not to sign anything unless it comes to our clan first for consultation.

About a month later, a letter started circulating around that was signed by our two chiefs. It was date March, before they had denied signing anything to the Aunties. The chiefs tried to say that they were signing under their English names, not their Haida names, but it was clear from the letter that they were forming a ‘Hereditary Chiefs of Haida Gwaii LLP’.

We were more disappointed about lying to the Aunties, and all agreed that they were given every opportunity to do things right. We decided that if we allowed them to continue down this road, they could continue signing deals and bring shame to the Yahgulaanaas/Janaas clan.

So we decided to host a potlatch and remove the names and standing as a chief. And we wanted to focus on what they should be as a chief, which is being a voice for our clan and not acting on their own.

So we asked how do we go about this? We talked to lots of Elders and I asked, “Has this ever been done, Naani?” She answered “Well, no I’ve never seen this because our chiefs were taught the right way before so we never had to do this because our chiefs were taught from a young age, ‘these are your responsibilities’ and they were taught that ‘you are the spokesperson for your clan, you’re not a spokesperson for yourself,’” and she said, “We’ve lost a lot of that teaching. So she can understand why this is so necessary.”

In Haida law we know that you have to out-potlatch the people who potlatched the names. So we got preparing with weaving and jarring jam. We had to do it in six weeks; potlatches usually take two years to plan.

There was some opposition because of jobs and family loyalties. We prepared for protest and tension by making sure that it was done in a really good way. A respectful way.

It wasn’t an easy task. It was really challenging, especially for the four Aunties because these were their nephews.

When the potlatch started, there was tension. You could hear a pin drop. Everybody was anxious because they didn’t know how this was going to be done. Chief Darin made a very clear statement, as our ancestors would have:  “This has happened. We are removing the name as a chief’s name. It will no longer be recognized in our clan as a chief’s name. Yahgulaanaas Clan has spoken.”

We also read aloud the declaration that was etched onto a copper shield about the responsibilities of a chief.

Chief Swanson and the copper shield which says: As litl’xaaydaGa [chief] I WILL HOLD FOREMOST THE WELLBEING OF HAIDA GWAII, ITS AIR, LAND, WATERS AND CREATURES FOR FUTURE GENERATIONSPhoto: Christine Martin via Facebook

The Aunties are still undecided about who will replace the chiefs. It will be a future potlatch. It won’t likely be the same name; it’s too tarnished. “We will get another name if we need to do that,” they said.

They called up the next [hereditary chief] in line for one of the branches, and said, “You be on notice. You have to start preparing now.”

Then the most amazing thing happened and you could feel an ‘ahhhh’ [sighs]. Two of the Aunties were standing up, while the other two were still sitting. And then they stood up and stood together behind the next in line, and all of a sudden everybody’s mood completely changed.

It was an unspoken law. It spoke volumes. Nobody is going to come and protest this now. People started enjoying themselves.

For the other branch, a young 11-year-old boy was identified as a future hereditary chief. A commitment was made to nurture that young man by our chiefs and matriarchs.

A highlight for me was when, during the feast, our dancers sang the Chief Song for Darrin. It was not an easy task for him to lead this work. He was served with a cease and desist letter trying to stop the potlatch. This only emboldened us more. “Canadian law has no place in our potlatch. It has no relevance for what happens in this house.”

A lot of people have been asking me, “Can this happen in other communities?” Every community is different. But we showed that you can do this in a good way. You can do it in a respectful way. But give the responsibility to do it in your own communities.

Some of the media reports like VICE did a good job reporting the story because they were on the ground. But other outlets tried to talk about it as proof of division.

 

The characterization of the potlatch representing division did not go unnoticed in the Indigenous community. (via Facebook)

 

We really did everything according to our Haida laws. We had to remember that each branch within the clan can’t interfere with the business of the other clans. We gave the opportunity for ex-chiefs to make things right. They always have a spot in the clan, though not as chiefs.

Colonization has had an impact. A lot of our teachings have been lost. The role of the chief needs to be taught. We walked away with a better understanding of that.

Chief Swanson standing before the Chiefs Song. Photo: Eugene Kung

United against “divide and conquer”

As stated above, the potlatch was important as a contemporary exercise of Indigenous law applied to an issue that affects us all. While the courts have recognized the existence of Indigenous law, they have  not yet had to grapple with conflicting Indigenous and Canadian laws. For now, it remains largely theoretical in Canadian law, much like Aboriginal Title after the Delgamuukw case until it crystalized in the Tsilhqot’in ruling. But it is not theoretical within the Indigenous legal traditions that continue today.

The potlatch was a very clear application of Haida Law and procedure. The Haida were able to use their own laws and procedures to undermine the tactic that industries and governments have used forever:  dividing and conquering communities by cherry-picking individuals to try and give the illusion of support and consent – a tactic that is not used exclusively in Indigenous communities. Potlatching the removal of hereditary chieftainship challenges the assumptions and changes the rules of the game that those strategies are based upon.

Indeed, Discourse Media has recently obtained an unsigned term sheet from Enbridge, promising a $90,000 payment to hereditary chiefs for “promoting cultural activities of their choosing,” plus $10,000 to set up a corporate legal entity such as a limited liability partnership (LLP). Disturbingly, there is a confidentiality clause in the term sheet that requires all parties to keep its existence secret.

The unsigned term sheet does not prove anything, other than what Enbridge has tabled for some hereditary chiefs. It is dated June 2015, long before the emergence of the support letter and revelation of the Hereditary Chiefs of North Haida Gwaii LLP.

As UBC Aboriginal Law professor Gordon Christie stated, “It looks like it’s part of a ‘divide and conquer’ strategy on the part of Enbridge. It looks like they are very much into this game of trying to pick and choose people they can separate from the leadership itself and basically try to break the community up. It’s extremely unethical behaviour.”

Photo: Christine Martin via Facebook

Risk and uncertainty for Enbridge and industry

For those in industry and government looking to reduce risk and uncertainty for their projects, this is very bad news. The attempts to secure certainty and support by cherry-picking a few individuals has backfired. This type of Indigenous law response could affect other First Nations on other projects, be they pipelines, LNG plants, forestry, mining, fishing or any other resource or land use issue.

For Prime Minister Trudeau, there may also be personal implications. Much has been made about his Haida-inspired tattoo, apparently an homage to his father’s adoption into the same Yahgulanaas/Janaas clan in 1976, when Justin was only 4 years old. If the Prime Minister approves Enbridge or Kinder Morgan, could another potlatch be in the works? That will be up to the Clan and the Aunties.

Final thoughts

In the days following the potlatch, I had the great pleasure of speaking with a number of Haida leaders. One conversation stood out. Reg Davidson, reflecting on the work as he prepared to go Halibut fishing said “It is a reminder to other hereditary chiefs that their positions aren’t guaranteed for life. In the end, it was the people who held them accountable. Without the support of the people, there is no power.”

 

By Eugene Kung, Staff Counsel