Jan 19/98: Delgamuukw ruling defeat for natives


Maclean's Magazine
January 19, 1998, p. 7
Norman D. Mullins - column "The Road Ahead"

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.
The author, Mr. Mullins, is a lawyer in the field of "Aboriginal" Law in Vancouver.]

The Indians of this country are wrong when they boast that they won the Delgamuukw land-claims case. The truth is that the Supreme Court's decision in December was a devastating defeat for Indian claims to self-government and title to lands. The order for a retrial poses virtually insurmountable problems of proving even a right to occupy alleged "traditional territories."

The court pointed out: "Their claim was originally for 'ownership' of the territory and 'jurisdiction' over it... The claims for ownership and jurisdiction have been replaced with claims for aboriginal title and self-government." The court unanimously buried the argument that "aboriginal title... confers on Aboriginal Peoples the right to use those lands as they choose," holding that aboriginal title "confers the right to use the land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of aboriginal societies."

A useful analogy is a lease that grants a right to occupy and use land, but not to sell, mortgage or otherwise dispose of it. Whether the lease and his or her relatives occupy the land for 100 years or 1,000 years and no matter how greatly the value of the property increases, the lessee never becomes the owner but holds it subject to the terms and conditions dictated by the lease. The Supreme Court held that Indian rights of use and occupation are strictly limited.

1. Aboriginal title "cannot be transferred, sold or surrendered to anyone other than the Crown."

2. It "arises from possession before the assertion of British sovereignty... Practices, customs or traditions that arose solely as a response to European influences do not meet the standard for recognition of aboriginal rights."

3. The "lands... cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land." For example, "if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (eg., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot.)"

4. Aboriginals "must establish occupation of the land from the date of the assertion of sovereignty [by the Crown]... What is required, in addition, is a continuity between present and pre-sovereignty occupation."

5. "At sovereignty, occupation must have been exclusive... ie, to the exclusion of both non-aboriginals and members of other aboriginal nations."

Considering how few Indians inhabit the huge land mass being claimed, it is inconceivable they will ever be able to prove exclusive occupation, for native functions or otherwise. This judicial disaster has immediate impact on other native land claims, particularly the Nisga'a Agreement in Principle, which has been negotiated on the theory that the Indians owned the land and the non-Indians have to buy it back. As a result of Delgamuukw, the price should have dropped further than Bre-X shares.

Letters to Maclean's Magazine: letters@macleans.ca


Full text of December 11, 1997 ruling:

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

Background information on Delgamuukw case:

Back to SIS