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OTTAWA -- Hereditary chiefs from British Columbia are taking their lengthy, expensive fight for aboriginal rights to the country's top court today in what has been called the most important land-claims case in Canadian history.
The landmark case involves the Gitksan and Wet'suwet'en bands of northern B.C.
"At stake is the legal, and ultimately political foundation of the existence of First Nations in British Columbia," says Grand Chief Ed John, a prominent aboriginal leader in B.C.
The case is back in court for two days of arguments after negotiations broke down between the federal and provincial governments and Gitksan negotiators in 1996. The chiefs want ownership of public property plus forestry, fishing, mining and water rights.
The Delgam Uukw case -- named after one of the 35 Gitksan chiefs -- revolves around a 1984 claim from the two first nations for ownership and jurisdiction over 57,000 square kilometres of northwestern B.C. -- an area roughly the size of Nova Scotia.
In question is land that includes salmon-rich rivers, minerals and forestry in the Bulkley, Skeena and Babine river systems.
So far the federal government has funded the band's $7.4 million in legal fees.
The top court is being asked to re-examine the 1993 decision of the B.C. Court of Appeal that was viewed as a partial victory by aboriginal groups.
The B.C. court's five judges unanimously ruled that native rights were never extinguished by the colonial government before Confederation and the rights are protected in the Constitution.
The ruling, if upheld, gives natives a stronger bargaining position in treaty negotiations.
The decision forced an overhaul of land-use planning in B.C., requiring the province to consult with natives before making decisions affecting development and resource activity on Crown lands.
But the Indian chiefs are appealing the 3-2 decision of the same court that rejected their claim to jurisdiction and self-government on traditional territories. The original appeal was based on a controversial 1991 decision by Chief Justice Allan McEachern of the B.C. Supreme Court.
The decision outraged the aboriginal community, with some commentators saying it was racist and presented the bands as primitive people wandering aimlessly through the countryside with no more social organization than a pack of wolves.
Plans to appeal the case to the Supreme Court of Canada were temporarily adjourned pending the outcome of negotiations.
But when the B.C. government decided to suspend the talks with the Gitksan just before the provincial election because of a logging dispute, the case was sent back to the court.
Alan Pratt, an Ottawa-area lawyer who specializes in aboriginal issues, said the Supreme Court may deliver a "profound decision."
But he warned the court may reject "a broad-brush approach" to aboriginal rights in favor of a "very particular approach that is specific to the people and location" involved, as it has done in recent cases.
"I have a feeling that the court will decide to grapple with the profound issues and if they do decide to grapple with them, it will be an incredibly important case because it will be the first time that they have dealt directly with aboriginal title and aboriginal self-government."
A decision is not expected from the top court for six to 12 months.
Title: Natives' massive land claim.
Guest: RON CHARLES, CBC Reporter
LILY JACKSON, Hereditary Chief
STUART RUSH, Lawyer For The Gitsxan
JOSEPH ARVAY, Lawyer For BC
GORDON SEBASTIAN, Gitxsan Litigation Team
PETER MANSBRIDGE: It is a massive land claim, one that took 13 years to get where it is today -- the Supreme Court of Canada -- where two aboriginal nations from British Columbia are united in a fight for the land and its riches. Ron Charles now, on the claim and what's at stake.
RON CHARLES: Drummers and dancers brought a little bit of the Gitxsan nation's culture to the lawn of the Supreme Court. The Gitxsan and another Indian nation from British Columbia, the Wetsuweten, say their culture, their way of life is at stake in a landmark case before the court.
LILY JACKSON / HEREDITARY CHIEF: We want to hold on to our traditional ways and our land.
CHARLES: The land the two nations call theirs is 57,000 square kilometers of northwestern BC, a tract of land roughly the size of Nova Scotia. The Gitxsan and Wetsuweten want the high court to issue a declaration giving them title over the land.
STUART RUSH / LAWYER FOR THE GITSXAN: Entitle means that they have a beneficial entitlement to use the land and its resources in a societal way.
CHARLES: The resources on the land include billions of dollars worth of logging and mining. The two aboriginal nations say they don't want it all for themselves. They're willing to share. They do want a say in how the land is developed. But the lawyer for British Columbia says if the judges give them what they're asking for, the results would have far reaching implications.
JOSEPH ARVAY / LAWYER FOR BC: They have to understand the full consequences of constitutionalizing aboriginal title, because it may mean that a very large area of BC will be immune from provincial and federal legislation.
CHARLES: The land isn't covered by any treaty. The Gitxsan and the Wetsewetan want the court to define aboriginal rights as they apply to the land. Most lower courts have ruled against them. The negotiations out of court have failed. There's fear that another court ruling against them will result in violence from the younger generation.
GORDON SEBASTIAN / GITXSAN LITIGATION TEAM: Ipperwash is just the beginning; Oka is the strategy, and Gustafsen Lake will be the daily news.
CHARLES: It could be months before the court rules on this case. Both sides say they would much rather negotiate than litigate. But so far, there are no plans to do that. Ron Charles, CBC News, Ottawa.