May 26/98: Consequences of Delgamuukw


Globe and Mail
May 26, 1998, p. A22
Jeffrey Simpson

[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.]

Five months after the Supreme Court of Canada's historic Delgamuukw ruling on aboriginal title to land, the first, flickering indications of its potentially momentous impact on British Columbia are appearing. While governments and business try to predict how Delgamuukw might change negotiations toward new treaties or lead to fresh litigation, some aboriginal groups are using Delgamuukw in court cases. Five aboriginal nations have started, or restarted, litigation using, in part, the Supreme Court decision to underpin their claims to aboriginal title.

Perhaps the most striking involves the Sechelt nation on the Sunshine Coast north of Vancouver. In 1986, the Sechelt negotiated a self-government act that gave them something akin to the powers of a municipal government on their reserve. Twelve years later, partly inspired by Delgamuukw, the Sechelt have started litigation for aboriginal title to a large region of what they say is their traditional territory running from the coast inland between Howe Sound and an area north of Jervis Inlet. At least seven timber companies, including such giants as Fletcher Challenge and Canadian Forest Products, have leases on Crown land claimed by the Sechelt. In their statement of claim, the Sechelt argue that moneys paid by leaseholders to the Crown should be paid to the Sechelt.

In words inspired by Delgamuukw, the Sechelt claim to have been "denied their rights of occupation, possession and use of the traditional territory, their rights to choose to what uses the traditional territory may be put and to realize economic benefits from the traditional territory..." Much farther north, around the Nass Valley, the Gitanyow have been arguing for years that 84 per cent of the land claimed by the Nisga'a is part of traditional Gitanyow territory. Negotiations toward a final settlement of the Nisga'a claim, meanwhile, are in the last stage. The Gitanyow, in a March 6 statement of claim, insist the Nisga'a negotiations are unfair because they exclude the Gitanyow. The echoes of Delgamuukw, which significantly widened the legal weight that courts must give oral renderings of historical events by aboriginals, are heard in the Gitanyow statement of claim.

The Gitanyow claim thus illustrates not only the traditional arguments by aboriginal peoples against the Crown, but also the tensions that arise between aboriginal peoples whose claims overlap. A classic instance of that intra-aboriginal tension occurred on April 22 when the Yale band claimed aboriginal title, including the right to fish, on part of the Fraser River where the federal government had previously allowed the Stolo nation the right to fish commercially as well as for ceremonial and sustenance purposes. The clash of rights, and the search for commercial gain, that set the Stolo and Yale against each other is something endemic to BC land claims because so many claims overlap. Even the area claimed by the Sechelt contains a small piece of territory traditionally claimed by the Sliammon.

In part of the Rocky Mountain Trench near the finger-shaped Williston Lake northwest of Fort St. John, overlapping claims involve the Takla Lake band and the Tsay Keh Dene. Both groups have started litigation to halt the Kemess mine owned by Royal Oak Mines. That mine received approval under both provincial and federal environmental-assessment laws, but the two aboriginal groups, relying on Delgamuukw, claim that none of the provincial or federal statutes are lawful because they infringe on the bands' aboriginal title. The claim to that title has been strengthened by Delgamuukw. Claims to aboriginal title certainly did not begin with the Delgamuukw decision. Aboriginals had been making sweeping claims for years and, in many cases, had entered a treaty-negotiation process with Ottawa and British Columbia. What Delgamuukw did, in ways yet to be tested in courts or negotiations, was to widen the support underlying aboriginal arguments for title.

The result has been business uncertainty about who has which rights over wide swaths of British Columbia. Delgamuukw also has caused Ottawa and Victoria to rethink the treaty negotiation process. Announcement of a new process, or a streamlined variation of the old one is expected soon. That Delgamuukw may be hugely consequential is widely acknowledged, but just how those consequences will play themselves out remains the subject of speculation, hope and anxiety.

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