January 13, 1998
[Note: the following interview is posted here with permission of University of Victoria student newspaper The Martlet, who initiated the interview.]
Martlet: Why did Wolverine and OJ give up their right to appeal the sentence?
Bill Lightbown (BL): Because of the past history of the judiciary. [The judiciary] will use any excuse they can to sidestep the jurisdictional argument that is the basis for their real stand and their real struggle.
Martlet: Who wins what with the Delgamuukw decision?
BL: The aboriginal nations in BC win from the Delgamuukw decision in 2 or 3 different ways. First, the Supreme Court of Canada has recognized that aboriginal title exists. Now because it has been a clear question brought before the Supreme Court of Canada what that aboriginal title really entails, they have suggested that British sovereignty or Canadian sovereignty still exists in this territory, but that aboriginal title also exists and the only ones that can take away aboriginal title is representatives of the Queen - and the province doesn't fall under that category. Second, so what they have said is that the province never did have any legal authority or rights or jurisdiction to eliminate aboriginal title in BC or to eliminate aboriginal rights. Third, of course, that the oral history of the aboriginal people is proof enough that they have existed on those lands and hold title to those lands -- and have for thousands of years. Fourth, they threw out the previous decision by McEachern in Delgamuukw in the BC Court, and also the BC Court of Appeal decision. What they have said is that basically (the original) Delgamuukw (decision) in law no longer exists. And they suggested that the aboriginal people in BC sit down with the Crown and negotiate treaties, or the alternative is a new trial for Delgamuukw.
Martlet: What's the difference between aboriginal title and aboriginal sovereignty?
BL: There is no difference, but the Supreme Court of Canada didn't make that distinction in the Delgamuukw case. The only way they can do that is if the question was brought directly to them. And of course the question is the one that Wolverine (Jones William Ignace, imprisoned Ts'peten Defender) is bringing at this time, which is jurisdction. The Crown, or BC government, doesn't have jurisdiction on unceded territory...There's no question they have not dealt with the existence of sovereignty, because that has never been a question before the court. So they can't deal with a question that hasn't been raised. Now it is up to our people to raise that question of sovereignty - then they would have to deal with it in a different fashion.
Martlet: Hasn't the question of sovereignty been raised before -- by, say, Harold Pascal or Wolverine or Dr. Bruce Clark?
BL: Yeah, but it's been stonewalled in the courts here and has never reached the Supreme Court of Canada. The only time it ever reached the Supreme Court of Canada, what they said was jurisdiction had never been dealt with in the courts in BC, so they ordered Bruce Clark to come to BC and raise the issue again. Well, he's never been able to raise the issue again because they keep beating him up and throwing him in jail and all kinds of other things. And every time that he does get a question of jurisdiction before the courts which is basically sovereignty, they keep quoting Delgamuukw. Like they start with Delgamuukw, and with the Williams case; Williams quoted that that decision had been dealt with in Delgamuukw,and had ruled against the jurisdiction and sovereignty of the aboriginal people. Well in fact it didn't, hadn't dealt with that particular question, but the other 30 odd times that Bruce took the question to the Supreme Court of BC,they just quoted Williams and said "Well I concur with my brother Justice Williams and I find that it was dealt with in Delgamuukw". And that's it, they won't even look at the question. So that's how they've been stonewalling it.
Martlet: Why do you think the Gitxsan and Wet'suwet'en are taking a course different than that of the sovereigntists when white law so clearly defines and supports sovereignty? I don't know if that's a correct question?
BL: Well it is a correct question, and the reason it is a correct question is because they began to prepare for that case back in 1982 or 83 when they really started it. They started to pull the information together and what not to present in their position. And at that time there wasn't knowledge and understanding of the existing laws by our people. WE KNEW --we always knew we held title to the land and that we were sovereign nations. But we didn't know how to approach it in British law. It wasn't until Dr. Bruce Clark came along with all of the 17 years of his digging through all of the laws and existing laws that they were able to pull it together. Now they already had that case moving and in motion when Dr. Bruce Clark landed here and he suggested to them that they should really pull their whole argument out and go with the legal argument of pure law that he represents, and they rejected him. As a matter of fact, Neil Stared is the one that really rejected him, and Neil Stared is the one that convinced the people they shouldn't go with him, which is very regrettable, because they would have succeeded -- there is no question about that because you can't get around the law, it's so clear. And on top of that, they spent eight years preparing for their trial. And they had all of their elders and all of the evidence necessary to present to the trial. But in fact their lawyers sold them out on the opening remarks to that court. And what they said was they recognized the jurisdiction of the British Columbia governments, and we recognize the BC government's jurisdiction over the land in question. Well, they gave up the struggle on the first opening remark.
Martlet: What do you think of the settler courts saying that Indian people must prove they occupied a certain land area, and that oral history is considered hearsay evidence as found by McEachern.
BL: Well of course he was absolutely wrong from square one in regards to that and the Supreme Court of Canada in fact supports what I am saying.They have disagreed with McEachern's stand on that themselves, and they have said that he erred in that respect and that the oral history of the aboriginal people in North America where they don't have a written history is very valid, because it's a traditional thing that is passed down from generation to generation. Of course it's proof enough that they happened to be there and have lived on the land for thousands of years. So for a judge to blatantly to ignore their existence and survival in that particular location is totally unacceptable.
Martlet: What are your thoughts on McEachern saying to OJ and Wolverine, "I am not persuaded that that is in your interests to do so (in giving up their appeal of sentence) and I believe that they are wrong in thinking that you cannot have both appeals..."
BL: In my estimation what he is really saying there -- and he can't come out blatantly and say it -- but what he's really saying there is if you'll drop the jurisdictional argument and go with the other appeal, it undoubtedly will succeed.
Martlet: After the Delgamuukw decision, both natives and politicians spoke of the necessity of negotiations. What is the role of the BC Treaty Commission? How does the BC Treaty Commission relate to the Delgamuukw decision and the fight for sovereignty?
BL: The role of the BC Treaty Commission is to set guidelines to bring the aboriginal nations into negotiations with the representatives of the federal and provincial governments. And the purpose of the negotiations is to give up the legitimate aboriginal title and legitimate sovereignty that exists in 'BC'. And all their aboriginal rights to be replaced by some form of compensation for the loss of that, as well as the identifying of what will then be the only aboriginal rights that will be negotiated for those nations in 'BC', that will be negotiated through the treaty-making process.Now as far as I am concerned, of course, it's a fraudulent process. It was never intended by the governments and the representatives of the governments to deal honestly and truthfully with the aboriginal nations in 'BC'. It's more of the continued theft that has been taking place in the past 100 and some odd years in 'BC' and the last 400-500 years in Canada.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.
Martlet: Is there anything you want to add?
BL: Well I do want to say this. Our people that are involved with this treaty making process, they've been beaten so severely about the head and shoulders for so long that they saw the treaty making process as an opportunity to at least gain something for the theft of their lands and their lives and what they've had to live under up until now. They thought that it would improve the lives of the future generations. In fact, all it's doing is denying the future generations their birth rights. And they have no right to give up the birth rights of the future generations who aren't here yet to have a say in what is going on. But initially there was a good reason for it, because of the horrible history of what has happened to our people and the genocidal policies and practices they've been subjected to for the last 6 or 8 generations. They were hoping to be able to improve on that and give our people a chance for survival. Well we have survived. We have survived in spite of all those things. And there is no excuse now for giving away -- blatantly giving away -- the birthright of the future generations.