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THE VANCOUVER SUN
LOWER MAINLAND
FRIDAY, DECEMBER 12, 1997
http://www.vancouver sun.com
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In historic judgment, top court strengthens Indian land claims
The court also sends a 1991 land ruling back to B.C. court but proposes new negotiations.
STEWART BELL, PETER O’NEIL and JIM BEATTY
VANCOUVER SUN
IIn a historic judgment, Canada’s highest court tried to clarify the murky concept of native Indian land rights Thursday, but there were mixed opinions about whether it succeeded…
Although the Supreme Court of Canada ordered a new trial in the Delgamuukw land claim in the Interior, the justices ruled on several key issues that arose in the case.
Most significantly, they described the nature and scope of “aboriginal title,” set out the rules for proving its existence, and ruled it is a constitutionally protected right.
Aboriginal title, which is different from ownership, exists where tribes occupied certain lands before they were taken over by the Crown, the court said.
Lands on which aboriginal title is found to exist cannot be used for purposes that conflict with the tribe’s traditional relationship with the land, the court ruled.
It also said the federal and provincial governments may infringe upon aboriginal title only if they have a “compelling and substantial legislative objective.” such as logging or economic development.
But when that occurs, tribes must be consulted about the use of their traditional lands,
and must receive “fair compensation” when their aboriginal title is infringed.
The court also said aboriginal title cannot be extinguished by the province…
…The Supreme Court justices overturned most of the 1991 ruling by BC Supreme Court Justice Allan McEachern, now chief justice of BC, who said the chief’s rights had been extinguished at the time of colonialization.
The court also “reluctantly” ordered a new trial for the case, saying McEachern erred by not allowing the chiefs to admit as evidence the oral histories of the Gitxsan and Wet’suwet’en people.
But the high court also said it didn’t necessarily believe there needed to be another trial and instead suggested the dispute should be settled in negotiations…
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