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BIG HAMMER?
Gitxsan band
members react to
the ruling
OUR HOME and NATIVE LAND
A Supreme Court decision gives native peoples potent weapons in the battle to decide nontreaty land claims
By ANDREW PURVIS
Summary of document:
For the past three decades, as Canada’s native peoples tried through the courts to gain title to land their ancestors had occupied for centuries, they ran into a legal wall. Western judicial culture demanded paper trails; in many cases, native cultures lacked formal written records. Touchstones of native history, from oral traditions to linguistic and archaeological evidence, were dismissed by the courts as no substitute for documentation. If there was no formal treaty to back the claims, “it’s as if we didn’t exist,” said Phil Fontaine, grand chief of the aboriginal umbrella organization the Assembly of First Nations…
Not any more. In a unanimous decision, Canada’s Supreme Court last week not only declared that such aboriginal title exists and is protected under the country’s constitution, but also ruled that in considering the claims, governments need to respect native tradition and history as evidence…
The court’s decision dealt primarily with a claim, first brought in 1984 by the Gitxsan and Wet’suwet’en peoples, over 58,000 sq km of mountains and forest in isolated northwestern British Columbia. The area is sizeable enough, but the ruling will also reverberate across the country, wherever colonial or Canadian governments failed to sign land treaties, and where new treaty negotiations are under way. Exclaimed Gitxsan spokesman Herb George: “We’ve been given a diamond for Christmas instead of a lump of coal!”...
Exactly what the decision will mean in concrete terms remains unclear. In the case of the Gitxsan and Wet’suwet’en, two native groups that total fewer than 10,000 members, the court did not rulte one way or the other on title to the disputed lands; it simply referred the case back to a lower court. But in doing so it set a new test for what constitutes title, as well as noting that the judge who originally heard the case, British Columbia supreme court justice Allan McEachern, erred in dismissing tribal oral histories and other kinds of evidence specfici to native culture. These should not get short shrift “simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case,” wrote Chief Justice Antonio Lamer in his decision. At the same time, Lamer urged both parties to try to avoid further litigation. Instead, he said, they should go back to the bargaining table. There, 20 months of talks between the Gitxsan and provincial and federal governments broke off early last year over how to define land that would form part of the settlement. “Let us face it,” Lamer wrote in conclusion. “We are all here to stay.”
Heedful of Lamer’s injunction, both sides indicated willingness to negotiate further. The bands’ position, however, is clearly going to be a lot stronger. “Until now the government saw aboriginal title as something vestigial that could be traded away,” explained lawyer Louise Mandell, who helped represent the Gitxsan in the case. “This decision says those title rights are contemporary and real.” …
LAMER: Along with the ruling, an exhortation to “face it. We are all here to stay.”
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