A court proceeding which began in a Vancouver courthouse on Thursday, Jan. 18 may end a long-running dispute over the leadership of the Kwantlen First Nation.
The currently recognized hereditary leadership of the KFN brought the court action to counter a dissident group. The dissidents have been pushing for reform and calling for the chief to step down, and held a meeting in the fall of 2022 where they appointed three of their own councillors.
Kwantlen First Nation has for the past several decades been one of the few large Indigenous nations in B.C. governed entirely by a hereditary chief and an appointed band council. Chief Marilyn Gabriel is the second chief under the most recent version of the system, which was put in place by her father. She has been chief since 1993.
A majority of First Nations across the country have some form of elected leadership, but a significant number are what the federal government refers to as 害羞草研究所渃ustom害羞草研究所� or 害羞草研究所渃ustomary害羞草研究所� governance. That can include a variety of forms of leadership, including some forms of hereditary rule.
The current push for change began officially in 2019, when a group of KFN members, dissatisfied with the current leadership, demanded Marilyn Gabriel resign as chief. Third-party mediation began shortly after that, but did not resolve the issues, and the chief did not step down.
On Nov. 27, 2022, a different hereditary chief, Robert Thomas, called an assembly of KFN members, and a vote selected three new councillors: Brandon Gabriel, Christopher Thomas, and Victor Back. Brandon Gabriel is Chief Marilyn Gabriel害羞草研究所檚 nephew 害羞草研究所� many people on both sides of the dispute are related.
This left Kwantlen with two sets of leaders 害羞草研究所� a hereditary leadership recognized by federal authorities in Ottawa, and three assembly councillors who were not.
The hereditary KFN government asked for the judicial review, and one outcome they want is for the court to order that the dissidents stop claiming they are official councillors.
As for the band members supporting the assembly councillors, they want the KFN to create a new governance code, similar to a constitution, to set out exactly how KFN should be governed.
On Thursday morning, after a traditional song by KFN members, Federal Court Justice Peter Pamel asked whether the two sides had been able to come to some kind of resolution or compromise since the date was set for the hearing.
害羞草研究所淭here hasn害羞草研究所檛 been movement towards resolution or reconciliation, justice, between the two sides,害羞草研究所� said Tim Dickson, the lawyer representing the hereditary chief and council. 害羞草研究所淭he issues remain as entrenched as they were in October I would say, potentially more.害羞草研究所�
Lawyer Evan Duffy, for the dissident group, said unfortunately that was true.
害羞草研究所淚 do think we害羞草研究所檙e here for determination of the issues on this,害羞草研究所� Duffy said.
The two lawyers set out the broad strokes of their arguments, which would rely on legal precedent, history, and traditional law and leadership customs among the Kwantlen people and other Sto:lo nations of the Fraser Valley.
Much of the case will turn on how the Kwantlen community as a whole can change its leadership or governance structure.
Both sides entered the hearing acknowledging that while there can be hereditary governance in Kwantlen First Nation, there was also a means for the Kwantlen people to change that, or even to remove chiefs.
害羞草研究所淭here害羞草研究所檚 no dispute that it [governance] may be changed if there害羞草研究所檚 a broad consensus among community members,害羞草研究所� Pamel said.
The legal fight centers around whether the Nov. 27, 2022 assembly could count as 害羞草研究所渂road consensus.害羞草研究所� Dickson argued it fell well short of that.
He characterized the Nov. 27 meeting as an 害羞草研究所渁ttempted coup.害羞草研究所�
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害羞草研究所淭hey [the new assembly councillors] have based their claims to authority on it since,害羞草研究所� Dickson said. 害羞草研究所淪o there is a great deal of importance on sorting that issue out, as to whether that meeting actually does give them that authority or not.害羞草研究所�
Dickson said he would argue that there was overwhelming evidence against the idea that the assembly had been broad-based enough.
Duffy argued that it was.
害羞草研究所淲e say it害羞草研究所檚 consensus, and we say it has to be looked at contextually, especially when there害羞草研究所檚 active attempts being made to prevent people from participating,害羞草研究所� Duffy said.
害羞草研究所淭hat argument害羞草研究所檚 being made on both sides, Mr. Duffy,害羞草研究所� Pamel said, referring to the attempts to prevent people from taking part.
Another question that the hearing might answer is how to define broad consensus for the future, even if Pamel finds that the assembly did not have the power to usher in any changes.
While Dickson was opposed to a prescriptive approach, Duffy was more open to it, including to the possibility of a vote or referendum.
害羞草研究所淢y friend [Dickson] says there害羞草研究所檚 no broad consensus,害羞草研究所� Duffy said. 害羞草研究所淭hen a vote would confirm that!害羞草研究所�
The early part of the hearing also touched on whether the existing leadership was moving towards reform, as Dickson said they were.
Duffy argued that was not happening, pointing to correspondence between the factions after the Nov. 27 assembly.
害羞草研究所淲e got nothing,害羞草研究所� Duffy said. 害羞草研究所淲e got obfuscation, stonewalling, and litigation.害羞草研究所�
He said they had great difficulty accepting that the hereditary chief and leadership were interested in reform.
Pamel warned at the outset of the hearing whatever ruling he makes, it might not be popular.
害羞草研究所淚 can say that one side is not going to be happy, and most likely both sides are not going to be happy,害羞草研究所� he said.
Both sides were making detailed arguments on Thursday, and the hearing was expected to continue into Friday, Jan. 19.
