Indigenous sovereigntists are about to tackle the BC court system again, and the province of British Columbia is responding by citing the discredited Delgamuukw ruling.
Today, January 26, 1998, the Supreme Court of BC will hear the appeal of Wolverine a.k.a. William Jones Ignace (Shuswap), James "OJ" Pitawanakwat (Odawa) and Shelagh Franklin (Canadian), convicted in the Ts'peten (Gustafsen Lake) trial, in tandem with the appeal of Lil'Wat traditionalist Tsemhu7qw a.k.a. Harold Pascal who is advancing a civil case. Their appeal, drawn up by Native Rights lawyer Dr. Bruce Clark, argues that the British Columbia judges have no jurisdiction relative to natives upon yet-unceded territory.
BC has traditionally met this argument with the claim that it has been dealt with in Delgamuukw, the infamous Gitxsan and Wet'suwet'en land claims case, ignoring the fact that the Supreme Court of Canada stated unequivocably that Delgamuukw never raised that issue. Recently, the Supreme Court of Canada went further and struck Delgamuukw down, ruling that the trial judge had erred and "a new trial is necessary".
Nonetheless, as can be seen in the Respondent's Factum below, the lawyers for the province argue that Delgamuukw and cases based upon it can still be applied to this issue. It remains to be seen whether the BC Supreme Court will accept this or whether they will finally acknowledge the previous rulings of the higher court.
Vancouver, January 13 1998
Court of Appeal Registry
No. CAO23439, CAO23440, CAO23441 Vancouver Registry
Counsel for the AGBC - Charles F Willms
Russel & DuMoulin, 2100-1075 W. Georgia, Vancouver, BC V6E 3G2
Tel: (604) 631-3131 Fax: (604) 631-3232
Counsel for the AG Canada - Mitchell R. Taylor
Department of Justice, 900 Howe St., Vancouver, BC
Tel: (604) 666-0246 Fax: (604) 666-2760
Part I - Statement of Facts............................................1
Part II - Issues on Appeal.............................................3
Part III - Argument....................................................4
Part IV - Nature of Order Sought.......................................6
List of Authorities:
Delgamuukw v. British Columbia
R v. Clark (1997), 88BCAC 216
Leave to appeal to the Supreme Court of Canada refused, [1997] SCCA No. 260
R v. Williams (1994) [1995] 2 CNLR 229 (BCCA) leave to appeal to the
Supreme Court of Canada refused, [1994] SCCA No. 566
2. This is an appeal from the decision of the Honourable Mr. Justice Josephson and a jury, pronounced May 20, 1997, convicting the Appellants of various offences under the Criminal Code, R.S.C.1985, c. C-34 arising out of events which took place in the summer of 1995 at or near Gustafsen Lake in the Province of British Columbia. A.B. at 14-15
3. During the course of the trial the Appellants brought an application for a ruling that the court had no jurisdiction over them. On May 9, 1997 the Honourable Mr. Justice Josephson issued reasons dismissing the application. A.B. at 30-32
4. On May 20, 1997, after 185 days at trial, the Appellants were convicted as follows:
Mr. Ignace was convicted of mischief, possession of a weapon for a purpose dangerous to the public peace, discharging a firearm at a police officer with intent to prevent the arrest of a person, and using a firearm in committing the assault of police officers. He received a sentence of four and one half years incarceration and a lifetime prohibition against possessing any firearm, ammunition or explosive substance.5. On July 7, 1997 the Appellants filed Notices of Appeal from conviction challenging the jurisdiction of the court. None of the Appellants sought to appeal from sentence. Subsequently, the Appellants Mr. Ignace and Mr. Pitawanakwat filed amended notices of appeal raising other grounds of appeal along with an appeal against sentence. A.B. at 15-16Mr. Franklin was convicted of mischief and received a sentence of twelve months incarceration to be served in the community followed by eighteen months on probation.
Mr. Pitawanakwat was convicted of mischief and possession of a weapon for a purpose dangerous to the public peace and received a sentence of three years incarceration and a lifetime prohibition against possessing firearms, ammunition or explosive substances. A.B. at 14 Appendix "A"
6. On December 11, 1997 the Appellants Mr. Ignace and Mr. Pitawanakwat appeared in this court, in person, before McEachern C.J.B.C, Cumming and Braidwood JJ.A. Mr. Ignace and Mr. Pitawanakwat applied to withdraw their amended notices of appeal and to have this appeal determined by this Court without oral argument. The application was granted and this Court ordered that the second notices of appeal were withdrawn as abandoned, that the appeals of the three appellants be consolidated and that the consolidated appeal could be determined by this Court on the basis of argument be submitted in writing. - Order of the Court of Appeal, December 11, 1997 Appendix B
8. There is no residual aboriginal sovereignty capable of displacing the general jurisdiction of the courts of British Columbia to try persons, whether aboriginal or non-aboriginal, for offences committed in British Columbia whether or not the alleged offences took place on "unsurrendered ground". R v. Williams (1994), [1995] 2 CNLR 229, at 233 (BCCA).
9. The Court in R. v Williams adopted the reasons of Cohen J. at 233:
I accept the respondent's submission that the result in Delgamuukw [(1993) 5 WWR 97, 104 DLR (4th) 470 (BCCA)] makes it plain that no Aboriginal jurisdiction superior to laws intended to govern all inhabitants of this Province survived the assertion of sovereignty. Furthermore, as Delgamuukw upheld the finding of McEachern CJBC (as he then was) that the Royal Proclamation has never applied to this Province, the appellants cannot rely upon the Royal Proclamation as support for their position.10. Gibbs JA, in his decision of Clark, supra, cited this passage from Williams as a "concise summary" of the law in BC in relation to jurisdiction over aboriginal accused. - R v. Clark, supra at 215I conclude that the decision in Delgamuukw is binding upon this Court and governs the issues raised in the instant appeals. As, in my view, correctly stated by the Crown submission: "There is no residual Aboriginal sovereignty capable of displacing the general jurisdiction of the Provincial Court to try persons, whether Aboriginal or non-Aboriginal, for offences under the Wildlife Act and Criminal Code throughout British Columbia, whether or not the alleged offences took place "beyond the treaty frontier".
11. Nothing in the Supreme Court of Canada's recent decision in Delgamuukw v. British Columbia, [1997] SCJ No. 108 (QL) casts doubt on the decisions in Williams, supra and Clark, supra. In Delgamuukw, the Court confirmed that "the purpose of s.35(1) [of the Constitution Act, 1982] is to reconcile the prior presence of aboriginal peoples in North America with the assertion of Crown sovereignty..." The Court also reaffirmed its statement in Pamajewon, [1996] 2 SCR 821 that "rights to self-government, if they existed, cannot be framed in excessively general terms". - Delgamuukw v. British Columbia, [1997] SCJ supra, at paras. 141, 170
12. The Appellants claimed immunity to prosecution is framed in excessively general terms. Consequently, it is well established that the courts of British Columbia have jurisdiction over aboriginal accused where an offence has allegedly been committed within the Province, regardless of whether or not the territory is "beyond the treaty frontier," or is "unsurrendered ground," as that term is used by the Appellants.
All of Which is Respectfully Submitted
Charles F Willms
Counsel for the Attorney General of BC
Vancouver, BC
January 9, 1998