Feb 20/98: Analysis of Delgamuukw (Sharon Venne)


Sharon Venne - Cree Nation
As distributed by Gatt Watchdog
Friday, February 20, 1998

Initially, in the 1980s the Gitksan and Wet'suwet'en Peoples took legal action before the Supreme Court of British Columbia (BCSC) to claim ownership and jurisdiction over their traditional territories in British Columbia. This claim was rejected by the BCSC, based on the rejection of the oral evidence given by the Chiefs and Elders. The British Columbia Judge argued that the Gitksan and Wet'suwet'en did not have either ownership of, or jurisdiction over their traditional territories. For him, they at most had an "aboriginal interest" in the land, meaning the possibility of use of unoccupied or vacant land.

The Chiefs appealed this decision in British Columbia. On appeal, the original claim by the Gitksan and the Wet'suwet'en was changed. It was no longer a question of "ownership" and "jurisdiction", but of "aboriginal title" and "self-government", according to Canadian legal categories. Another important change on appeal was the following: initially the Gitksan and Wet'suwet'en had submitted individual claims as "houses" (their traditional political organization) represented by their Chiefs. On appeal in British Columbia, these claims by Houses were combined into two communal claims advanced on behalf of each nation. The appeal was dismissed.

This is how the case came before the Supreme Court of Canada that handed down its decision in 1997. There are many technicalities in this judgment. But they all boil down to one fundamental issue, which is the content of Aboriginal title. This is what most of the judgment is about.

But before saying more, it should be noted that a positive aspect (at least at first glance) of the 1997 judgment deals with the oral evidence of the Chiefs and Elders. The oral evidence is composed of the sacred stories or songs related to the land, the people's history and their ancestors. These stories and songs are evidence that the people have occupied the land since time immemorial, and of how the different houses are tied to the land. Among the Gitksan and Wet'suwet'en, the stories are told and the songs are performed during traditional feasts, which are also occasions for important decisions regarding the people.

In comment on the decision of the Supreme Court of British Columbia, the Supreme Court of Canada (SCC) found that: "Had the oral histories been correctly assessed, the conclusion on these issues of fact [meaning: regarding ownership of, and jursidiction over the traditional territories] might have been very different". The implicit acceptance of the oral evidence by the Chiefs and their Houses has been commented on positively in the press and by the legal establishment, and the Gitksan and Wet'suwet'en themselves have said that they are satisfied with that acceptance of their traditions.

Looking more closely at the judgment, one notes that this positive aspect is counterbalanced by a negative one that has found less echo in the comments and is related to the Canadian legal tradition as such, and the role played by precedents in common law. The crucial precedent here is another SCC decision (handed down in 1996) called R v. van der Peet. This decision dealt with the question of whether an Indigenous woman from British Columbia was allowed to sell salmon that she had fished by virtue of an Aboriginal fishing right. In van der Peet, it is basically argued that she does not, for the sale of fish does not represent an Aboriginal right according to section 35 of the Constitution Act of 1982. In van der Peet, the SCC decided the following test on aboriginal rights.

The issue for the judiciary is: what is an aboriginal right by virtue of the Constitution Act? How to define it? What is its nature? This means that Indigenous Peoples' rights are entirely subjected to the Constitution of Canada and the preeminence of the Crown. What Canada and the Crown are ready to concede is some minimal respect for the "distinctive culture" of Indigenous Peoples. The decision on whether one is faced with an "aboriginal right" depends on whether the claimant, whoever it is, must meet a "distinctive culture test". And this is the test from van der Peet.

By virtue of that test, an Indigenous claimant must not only demonstrate that the right claimed is tied to a practice, tradition or custom that took place in the Indigenous society. It must also be proven that the practice, tradition or custom was central to the Indigenous culture, that it was what made that culture distinctive, what made the Indigenous society what it was and that it can be traced back to pre-contact times. According to the Supreme Court of Canada, in the van der Peet case, selling fish for money did not belong to such practices, traditions, or customs (another negative case based on van der Peet was made for gambling on-reserve, again not something "distinctively" Indigenous - that decision was called R v. Pamajewon, 1996).

The problem is that there is no way one can "scientifically" determine what is "pre-contact" and what is supposed to be "distinctively aboriginal". The Indigenous Peoples themselves are the best judge of our "traditions, practices and customs". Moreover, by focusing in this manner on Indigenous culture, one actually undermines any potential for Indigenous self-determination (and any control by Indigenous Peoples over their lands and resources). The fact that in the Delgamuukw case, the claim was transferred from one of "ownership and jurisdiction" into one of "aboriginal title and self-government" is evidence of that. Similarly, and van der Peet already spelt this out clearly, the issue for the courts is to define the "distinctive cultures" of Indigenous Peoples within the limits of the Canadian legal system, on the basis of section 35 which is interpreted as the main means of "reconciling" some minimal recognition of the prior occupation of the land by Indigenous Peoples (with their "distinctive cultures") and the (unilateral) assertion of the Crown sovereignty over Canadian territory.

Applied to the claim of the Gitksan and Wet'suwet'en, the van der Peet "test" is used to make "aboriginal title" contingent on the underlying title of the Crown. Thus in Delgamuukw, the Supreme Court of Canada defines "aboriginal title" as "sui generis and so distinguished from other proprietary interests". The Supreme Court of Canada determined that there are limits imposed on "aboriginal title" in the sense that lands so held "cannot be used in a manner that is irreconcilable with the nature of the claimant's attachment to those lands". The problem is that it seems to be the court - not the Indigenous Peoples themselves - that determines both the nature of the claimant's attachment and the substance of aboriginal title. It is also argued that: "If aboriginal peoples wish to use their land in a way that aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so". Thus, the Canadian legal system is the one to decide what "aboriginal title" is and what use Indigenous Peoples can put their land to. This is confirmed by a crucial statement in the judgment that reads:

"Aboriginal title is a burden on the Crown's underlying title. The Crown, however, did not gain this title until it asserted sovereignty ... Aboriginal title crystallized at the time sovereignty was asserted".
The question remains: how is all this supposed to have happened? Why is the unilateral assertion of Crown sovereignty a "heavier" argument than oral and other evidence of Indigenous jurisdiction since time immemorial? There is no legal proof. It is a political statement. It is more hocus pocus rules and regulation designed by the colonizers to dispossess Indigenous Peoples of our land and territories.

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