Jan 8/98: Supreme Court calls aboriginal title a burden


The Martlet
Thursday, January 8, 1998
Chris Morabito

A long-running and historic land-claims case ended Dec. 11, 1997, when the Supreme Court of Canada sent the Delgamuukw case back to B.C. for retrial.

The Supreme Court also recommended the government and Aboriginals negotiate a treaty rather than pursue a solution through the courts.

The claim, started over 17 years ago, involves the Gitxsan and Wet'suwet'en nations. Gitxsan and Wet'suwet'en leaders were quick to announce the Supreme Court ruling as a victory for their nations, which have together claimed a territory of 57,000 square km in northwestern B.C.

The Supreme Court ruling overturned a 1991 decision by B.C. judge Allan McEachern that Aboriginal rights had been extinguished by the colonial government of British Columbia. According to the recent Supreme Court ruling, McEachern (who was later promoted to Chief Justice), erred in dismissing the oral histories of the nations' chiefs as evidence they occupied the territories in question.

The Supreme Court ruled: "He [McEachern] dismissed the action against Canada, dismissed the plaintiffs' claims for ownership and jurisdiction and for Aboriginal rights in the territory, granted a declaration that the plaintiffs were entitled to use unoccupied or vacant land subject to the general laws of the province, [and] dismissed the claim for damages..."

The Supreme Court ruled the province had no authority to extinguish Aboriginal rights under the Constitution Act, 1867 or by section 88 of the Indian Act, and that Aboriginal title "still exists though it is only a burden on the Crown's underlying title."

The plaintiffs originally pursued ownership and jurisdiction over their traditional territories during the trial. On appeal in B.C., the claims for ownership and jurisdiction were replaced by claims for Aboriginal title and self-government.

The Supreme Court ruled a new trial was necessary because "[W]hat the appellants sought by way of declaration and what they set out to prove by way of evidence were two different matters."

The Supreme Court also ruled that although Aboriginal rights are protected by the Canadian constitution, they are not absolute and may be infringed upon by the federal or provincial governments.

The development of agriculture, forestry, fishing, mining, hydroelectric power and the general economic development of the interior of B.C. are just some of the infringements which supercede Aboriginal rights.

However, the Supreme Court ruling did not address jurisdiction, which is the legal argument that Aboriginal sovereignty is already defined in existing law. It means that B.C. has no legal right to impose decisions made by non-native courts on Aboriginal nations.

In a 1991 article entitled "The Fork In The Road", Tsemhquw (aka Harold Pascal), of the Lil'wat People's Movement wrote: "[T]he non-native courts do not lawfully enjoy the jurisdiction to decide the question of existing Aboriginal rights since that question has already been decided and confirmed constitutionally in the natives' favor."

Bill Lightbown, a Kootenay elder and former President of the United Native Nations, said the question of sovereignty has been continuously stonewalled by the courts in B.C.

Lightbown said the only time the jurisdiction argument ever went before the Supreme Court was during the Gustafsen Lake standoff. Aboriginal constitutional-rights lawyer Dr. Bruce Clark presented the jurisdiction laws to the court in an attempt to seek an injunction against further aggression by the RCMP at Gustafsen Lake. Clark was ordered to return to B.C. to raise the issue in a lower court.

"Well he hasn't been able to raise the issue again," said Lightbown, "because they keep beating him up and throwing him in jail."

Dr. Clark called the Delgamuukw case a "very sophisticated fraud" because: "[T]he essence of the native sovereignty position is that until there's a treaty, the Indians were here first and they have jurisdiction. Therefore, until there is a treaty the non-Indians don't have jurisdiction and correspondingly, their courts don't have jurisdiction."

While sovereigntists believe that Delgamuukw's end in law is a victory because the B.C. courts can no longer claim that it has settled the jurisdiction argument for Aboriginals, they don't see treaty negotiations with governments that have no legal jurisdiction as very rewarding.

Lightbown says the purpose of treaty negotiations is to give up the legitimate Aboriginal title and sovereignty that already exists in B.C.

"The treaty process is more of the continued theft of our lands that has been taking place in the past 100-odd years in B.C. and the last 400 years in Canada," said Lightbown. "There's no question it's a fraudulent process. If there was a proper justice process it would never stand up in any court of law."

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Full text of December 11, 1997 ruling:

Index of Delgamuukw/Gitksan articles, analysis, and commentary:

Background information on Delgamuukw case:

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