SpruceRoots Magazine - September, 1998
story by Ian Lordon
"I think our only option right now is court." Those are the words of Ron Brown Jr., president of the Council of the Haida Nation.
The Council of the Haida Nation (CHN) is on the point of launching what stands to become a landmark case in Canadian legal history. What Brown and the CHN are proposing, and what some of the best and brightest lawyers practising aboriginal law today are nearly begging them to do, is to become the first natives to prove title to their traditional territories in court. If successful, it will be the crowning glory of close to thirty years of legal wrangling by dozens of First Nations, and it will forever alter the social and economic fabric of British Columbia, if not the entire nation.
Without really knowing it until now, the Haida have waited near the end of a long path for others of the same circumstance to hand over a torch they can use to illuminate past injustices and incinerate the barriers preventing their correction.
Since the early seventies, First Nations across Canada battled in court first to prove aboriginal rights existed, then to define one by one what those rights are. Among those already proven are the right to hunt in traditional territory, the right to fish, the right to sell fish, the right to cut trees the list goes on. But last December, Gitksan and Wet'suwet'en natives forced the Supreme Court of Canada to explicitly define the nature and extent of aboriginal rights on traditional territories and the conditions which must be met in order to prove them. As it turns out, what the judges finally decided in that case left the Haida in the strongest and most compelling position of any First Nation in Canada to prove that the place they live and call home, Haida Gwaii, is indeed Haida Land.
Today the stage is set for one of the most controversial cases ever to play itself out in Canadian court, a high-stakes contest certain to occupy the centre of a political and media maelstrom. If the Haida win it could mean huge expenses and dozens of settlements for the provincial and federal governments, the end of the Indian Act and the BC Treaty Commission, wholesale changes in the way business is conducted by the resource sector, and countless other possibilities. On the other side of the coin, if they lose it will mark a return to Canada's history of rights abuses where first peoples are concerned, and an end to a recent series of judgments which favoured common sense, fairness, and justice over the interests of government, industry, and non-native society.
In short, in terms of aboriginal law, if the Haida launch this case they will be taking on the big smoke, the works, the one and only, the whole enchilada...
The history of aboriginal law in Canada began in 1763 when aboriginal title and rights were first recognized through a Royal Proclamation made by a fellow called George III who was King of Great Britain at the time. George said if his subjects wanted to colonize the new world they had better sign treaties with the locals on a nation-to-nation basis before they could claim ownership of the land.
It was 1774 before the first European even laid eyes on Haida Gwaii. He wasn't one of George's subjects, he was Juan Perez, a Spaniard out to lay claim to the west coast of North America before Russian explorers advancing along the Alaskan panhandle did.
A century later, in 1867, the British North America Act created Canada and granted ownership and jurisdiction of all land and natural resources to the provinces. When British Columbia joined confederation in 1871, one of its first acts was to pass the Qualification and Registration of Voters Act, legislation which denied natives the right to vote in provincial elections.
The potlatch and sundance were outlawed in 1884 with the first Indian Act, and in the years that followed, Ottawa steadily reduced the size of existing reserves. In 1920 the feds enacted Bill 14 empowering the government to strip natives living off-reserve of their 'status'.
In 1927 it became illegal for natives to raise money or hire a lawyer to pursue land claims.
Finally, in 1951, a new Indian Act revoked many of the more draconian aspects of earlier legislation and enabled First Nations to participate to some extent in their own decision making. However, natives still weren't allowed to vote in provincial or federal elections until 1960.
Nearly every expert agrees contemporary aboriginal law in Canada was born with the Calder ruling in 1973. The case was launched by the Nisga'a who, fed up by nearly a hundred years of fruitless negotiations, went to court to prove their claim to title.
After winding its way through trial and appeal court, seven Supreme Court justices were called upon to determine the legitimacy of the Nisga'a claim. Of the seven, only six addressed the question of title and they were evenly divided into two camps: the first group, led by Justice Wilfred Judson, found the Nisga'a claim was extinguished by British Columbia legislation enacted before the colony joined Confederation. The second, led by Justice Emmett Hall, declared the Nisga'a claim was valid and could be legally asserted at the time of the judgment.
While the judges couldn't come to terms on whether or not the Nisga'a owned the land, all six recognized that native title to the land existed under English law and that it pre-dated colonization.
Justice Judson put it this way: "The fact is that when the settlers came the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means."
Justice Hall said: "The Nisga'as in fact are and were from time immemorial a distinctive cultural entity with the concepts of ownership indigenous to their culture and capable of articulation under the common law."
Although it failed to grant title of land to the Nisga'a outright, Calder presented governments with the very real possibility that future cases might be decided in favour of First Nations. As a result, in August 1973 the Minister of Indian Affairs, Jean Chretien, announced the federal government intended to begin negotiations aimed at settling all claims not already extinguished by treaty.
In the years that followed, despite the initial optimism surrounding Mr. Chretien's announcement, very little happened. In British Columbia, problems arose from cross-jurisdictional wrangling. Any settlement negotiated by the federal government would come at the expense of a reluctant province which continued to hold jurisdiction over land and resources. A political stalemate ensued with the province steadfastly refusing to enter into treaty negotiations. The stalemate persisted until 1990 when BC finally joined ongoing federal negotiations with First Nations.
Coincidentally, 1990 was also the year the Supreme Court of Canada ruled on another landmark case in Aboriginal law now known as the Sparrow decision...
While BC refused to cooperate with treaty negotiations, the federal government had gone ahead with talks of its own and passed new legislation pertaining to aboriginal rights in the form of the Constitution Act of 1982. Section 35 of the Constitution Act deals specifically with aboriginal rights, but contains some of the vaguest legal language imaginable. In Sparrow, the court was asked to decide what the words "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed" actually mean in practical terms.
The case came before the court after Ronald Sparrow, a Musqueam, was nabbed by fisheries officers and then convicted for fishing with a longer driftnet than regulations allowed. Sparrow appealed the conviction on the grounds that Section 35 guaranteed his aboriginal right to fish with the net he used.
When the court overturned Ronald Sparrow's conviction it proved to be a victory not only for him, but for aboriginals all across Canada.
In Sparrow, Justices Dickson and LaForest made a sort of judicial promise to aboriginals when they determined that the aboriginal rights mentioned in Section 35 must be interpreted in a generous and liberal manner, that they can change and evolve over time, and that they may only be regulated for compelling or substantial reasons like conservation.
In the instance of Ronald Sparrow and his net, the court found that only when conservation goals are at stake can the government interfere with an aboriginal's right to fish for food, social, or ceremonial purposes.
Since Sparrow was handed down in 1990 there has followed a series of cases launched by aboriginals who believe their rights have been infringed and who want the courts to add more substance to Section 35 with further "generous and liberal interpretation" of the Constitution Act. These attempts were roadblocked time and time again by the BC Court of Appeal and Justice J.A. Macfarlane, and in so doing both failed to live up to the promise made in Sparrow by the Supreme Court of Canada.
The most notable cases of the nineties were Van der Peet and Gladstone. Both were fishing cases based on the Supreme Court's interpretation of Section 35 in Sparrow, however, both sought to expand on aboriginal fishing rights by including commercial harvesting.
Dorothy Van der Peet, a Sto:Lo, was charged with selling two salmon to a friend and in court claimed it was her aboriginal right to do so. When the case reached the BC Court of Appeal Justice J.A. Macfarlane spoke for a slim majority of judges who found the Sto:Lo have no right to sell fish.
The Gladstones, Heiltsuk people, were arrested when fisheries officers caught them trying to sell 4,200 pounds of herring spawn-on-kelp from the back of a U-Haul. Once more the case went to the BC Court of Appeal where Justice Macfarlane ruled the Gladstones had no right to sell spawn-on-kelp.
In both cases Macfarlane rejected the notion that aboriginals have a right to sell fish because he said they did not do so during the "aboriginal times" prior to colonization. Despite ample evidence in Gladstone that the Heiltsuk Nation traded extensively in spawn-on-kelp with other First Nations before European contact, Justice Macfarlane found that because the modern market is in Japan, there was no comparison.
Once these two cases reached the Supreme Court of Canada Macfarlane's narrow view of aboriginal rights was corrected. In August 1996, the Supreme Court ruled in both cases that commercial harvest and trade in a resource can be considered an aboriginal right if the aboriginal group can prove trade existed on such a scale prior to European contact.
Coincidentally, the BC Court of Appeal rejected the claims laid out in Gladstone and Van der Peet in 1993, just a few months after the BC Treaty Commission was established to reach negotiated settlements between BC First Nations and the federal and provincial governments.
The BC Court of Appeal also ruled on one other very significant aboriginal case in 1993, now widely known as Delgamuukw.
In the early eighties 51 hereditary chiefs, representing nearly every house of the Gitksan and Wet'suwet'en peoples, brought their claim of ownership and jurisdiction over 58,000 square kilometres of territory in northwestern BC to trial.
Satsan (Herb George), a Wet'suwet'en hereditary chief, acted both as a strategist and liaison person between his nation's chiefs and the legal team hired to represent them through what stretched into a ten-year ordeal. An ordeal which finally ended with the latest landmark decision by the Supreme Court of Canada last December.
Today, Satsan has no trouble remembering the feelings of frustration the BC government provoked with its persistent refusal to enter into land claims negotiations and the situation which prompted the attempt by leaders of Gitksan-Wet'suwet'en to prove ownership and jurisdiction over their territory in court.
"We did a number of cases," he recalls. "We would win on technicalities and the whole issue of our title and rights wasn't being addressed in any meaningful way."
When Satsan and his fellow chiefs reached the BC Supreme Court in 1987, they unknowingly set out on one of the longest trial cases in Canadian legal history. Justice Alan McEachern, who presided over the case, did not deliver his ruling until four years later in 1991. At that time the court had convened for 367 days.
"Those chiefs were with it all the way." Day after long day in court, the travel to and from Vancouver, endless hours of testimony -- the leaders and elders of the Gitksan and Wet'suwet'en never failed to impress Satsan. "To me, it was a tremendous commitment."
So it was a bitter disappointment when Justice McEachern finally laid down the law as he saw it and dismissed the case. To begin with, he chose not to grant much weight to the oral histories of the Gitksan and Wet'suwet'en as evidence. He agreed with the province's argument that aboriginal rights were extinguished in colonial BC. He went on to say that even if the Gitksan and Wet'suwet'en had retained rights to any territory it was only to active village sites, and the right to hunt on traditional grounds. Jurisdiction over lands, he concluded, was in the hands of the province courtesy of the British North America Act of 1867.
"It was a total shock... Our elders and chiefs said if we tell the truth, the truth will prevail. When I recall several of our chiefs talking about it afterwards, they referred to themselves as an invisible people as a result of Mr. McEachern's decision."
Although once the initial shock had passed Satsan says "there was a greater resolve" to carry on with the fight.
In 1993 the BC Court of Appeal overruled Justice McEachern's decision that all aboriginal rights were extinguished. Three of the five judges rejected the Gitksan and Wet'suwet'en claim of ownership and jurisdiction but did recognize harvesting rights on some of the territory claimed by the chiefs.
"We were able to get a pretty good minority decision. I think we knew the BC Court of Appeal was just a stepping stone to the Supreme Court."
But before presenting their case in Ottawa, Satsan and the rest of the chiefs reworked it in a couple of areas. First, they chose to claim title to their territories instead of ownership and jurisdiction, and second, they claimed title on behalf of all Gitksan and Wet'suwet'en people, rather than the hereditary chiefs.
"The way we approached the review was 'where did we screw up?'" Satsan says the chiefs went over the previous decisions, compared them with those from other aboriginal cases at the time, and came up with arguments they felt no lawyer - no matter how slippery - could refute. "It was an argument the court really couldn't say no to."
Satsan was right. The court didn't say no, but it didn't say yes either.
On December 11, 1997 the six judges who heard Delgamuukw in the Supreme Court of Canada unanimously decided to order a new trial. After hearing the evidence, the judges in the case found they could not rule on the claim. The principal reasons were that the trial judge, Alan McEachern, made a mistake in not granting weight to the Gitksan and Wet'suwet'en oral histories, and that the difference between claiming rights on behalf of individual hereditary chiefs and collective tribal rights was significant enough to warrant a new trial.
"It was a victory in one sense and in another sense it wasn't."
It definitely wasn't the ruling the Gitksan and Wet'suwet'en had hoped for, but it was an improvement over the BC Court of Appeal rulings from the early nineties, and it contained more groundbreaking jurisprudence than anyone had bargained for.
Although the Supreme Court judges said they didn't have the evidence they needed to decide if the Gitksan and Wet'suwet'en held title to the territory they claimed, the judges did set out the rules for what title is and how to prove it. The court also explained the conditions which must be met before title can be infringed.
Aboriginal title, according to Delgamuukw, does not mean ownership in the traditional sense. The court calls aboriginal title sui generis, which means there is nothing else quite like it. There are a number of qualities which distinguish aboriginal title from any other legal form of ownership:
- 1. Aboriginal title, like the aboriginals themselves, existed before European settlement and the Crown's declaration of sovereignty. It does not stem from Crown title like all other forms of legal title in Canada.
- 2. Aboriginal title is inalienable. It can't be sold, transferred, or surrendered except to the Crown.
- 3. Aboriginal title is held by all members of an aboriginal nation. It cannot be held by an individual.
- 4. Aboriginal title is a right to the land itself. It is more than the right to use a certain area. It can compete with other proprietary interests like ownership, leases, and licences.
- 5. Aboriginal title can mean exclusive use and occupation. Use can mean any form of activity including modern economic ones, and is not restricted solely to traditional practices.
- 6. Aboriginal title can also include mineral rights.
- 7. Aboriginal title is supposed to protect the relationship between aboriginal people and the land. Because of this, aboriginals cannot use title land for something that will destroy its traditional value. For example, an area of social or ceremonial significance can't be paved over.
- 8. Aboriginal title is not absolute. Neither the Crown nor the Aboriginal title holder enjoys full or clear title to lands or resources. Each is subject to the other's interest.
In addition to defining aboriginal title, the court also explained what it takes to prove it. The test for proof of title has two components, the land had to be occupied by the aboriginal people in question when the Crown declared sovereignty (1846 in BC), and the people had to be the sole occupants.
Proving occupancy can be done by demonstrating a physical presence on the land. This presence can take the form of houses, cultivated land, regular use of defined areas for hunting, fishing, or using its resources.
If governments want to use lands subject to aboriginal title, the court also laid out the rules they must follow before they can infringe on those lands. Before anything can happen on title lands, the Supreme Court said government must pass a two-part test justifying the activity.
The first condition is that any infringement requires a compelling and substantial legal objective. Examples of legitimate objectives include conservation, environmental protection, the pursuit of economic and regional fairness, reliance of non-aboriginal groups on a resource, non-aboriginal settlement, and economic development including forestry, mining, hydroelectric power and agriculture.
Although these examples grant government a fair degree of latitude, the second condition is that any infringement must be consistent with the fiduciary relationship between the Crown and aboriginal peoples.
What this means in the case of an aboriginal group with title to exclusive use and occupancy in a certain area where for instance the Crown wishes to grant a timber licence, is that the government must first demonstrate that logging the area is consistent with the interests of the aboriginal group. This might mean that the government includes aboriginal participation in logging the area, or an allocation of timber, or lowering barriers like licence fees for aboriginals to encourage participation.
Moreover, because aboriginal people have a right to choose what uses title land will be put to, government must be able to show aboriginal people wereinvolved in decisions taken with respect to their lands. The court was very specific in this regard:
"There is always a duty of consultation and in most cases, the government's duty will be significantlydeeper than mere consultation. Some cases may even require the full consent of an aboriginal nation,particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands."
Today on Haida Gwaii, nearly a year after Delgamuukw was handed down, very little has changed. Although the Haida have not proven aboriginal title to land, governments have not changed their policies to conform with the rules laid out by the Supreme Court.
In the case of the Ministry of Forests, for example, the government is still following a policy written in 1996 after the Supreme Court of Canada decided Gladstone and Van der Peet.
"The Ministry of Forest has been following that policy," according to Darrell Robb, planning and land information manager at the Vancouver Forest Region offices, where Haida Gwaii's forests are administered. "The provincial government has begun to discuss these issues with um-brella First Nations groups. We can't arbitrarily come up with our own policy, we're waiting for (the discussions) to be concluded."
Meanwhile, Robb says the Ministry of Forests is following its 1996 Policy 15.1, Protection of Aboriginal Rights. Essentially that policy dictates that the Ministry must first determine if aboriginal rights exist in an area where logging is proposed. That it must determine if aboriginal rights will be infringed if logging is allowed. And if an infringement is likely, the Ministry must find a way to accommodate the aboriginal interest before allowing logging to proceed. When an infringement occurs, the Ministry expects documentation on the nature of the infringement, what action was taken to avoid it, and reasons why no action was taken if such is the case. Adherence to the policy is the responsibility of the district office.
This policy agrees with and corresponds to the rules set out by the Supreme Court of Canada in Delgamuukw in all but one very important respect: It does not address the fiduciary relationship between the Crown and aboriginal peoples.
That aside, a close look at the Ministry of Forests' policy in action on Haida Gwaii seems to suggest that in practice at least it isn't living up to the government's "duty of consultation" required by the courts.
Ron Brown Jr., president of the Council of the Haida Nation, says the Ministry is not engaging in good-faith consultation and the reality on Haida Gwaii is something far from the intention of the courts.
"No, in fact the district manager [Cindy Krishka] just left here and signed off a whole bunch of cutblocks." The Ministry's consultation usually takes the form of faxing the cutting permits to the CHN and band offices once they are approved. Brown says if Delgamuukw had any effect on Haida Gwaii it only accelerated the rate of harvest. "That's becoming a real problem. MacMillan Bloedel has really stepped up their logging and it's mostly cedar going out now."
The Haida have traditionally used cedar to build homes, totems, and canoes. The test holes in cedars left by Haida ancestors all over the Islands are only one element in a strong case for claiming title to many of the forests on Haida Gwaii. And yet negotiations with the province to reach any kind of accommodation have so far been fruitless.
I t isn't only in the forests where the principles and rights of aboriginals outlined in Delgamuukw are not being respected.
In March, the Department of Fisheries and Oceans allowed a commercial harvest of roe herring over the objections of the Haida Nation and in the face of a protest organized by the CHN. Herring are the source of roe-on-kelp or k'aaw, a traditionally harvested source of food for the Haida. Lingering bitterness and anger over DFO's decision to proceed with its fishery last March was still evident when officials met with Haida leaders to discuss next year's fishery.
"We don't consider this consultation, we consider this an imposition," Old Massett village councillor Wilfred Price told DFO officials at a meeting in Skidegate in mid-September. "I want it clearly understood that this was the Haida telling you that there will be no fishery on Haida Gwaii for herring."
"Why do you do that to us? I don't understand you. We have absolutely no more confidence in the DFO." Chief Skidegate, Dempsy Collison said before walking out in disgust. But he promised if DFO attempts to allow a harvest in 1999 the fishery will meet Haida resistance. "We're going to be stronger this time."
Kim Davidson, chief councillor of Old Massett says the herring fishery is simply a blatant example of what is happening all the time.
"You can see what happened with the roe-on-kelp. They ask for input and they do whatever they want. Meaningful consultation would be where our interests are taken into consideration." Davidson says if anything government practice as it relates to aboriginal issues seems to be adopting an urgent disregard for the rights recognized in Delgamuukw on every front. "They're even more adamant about pushing through whatever they want."
CHN president Ron Brown Jr. says the Haida are fed up with the obvious disregard for their rights and many are calling for actions like further civil disobedience to assert their claim on Haida Gwaii.
"I'm having a hard time keeping people from shutting down logging on the Islands." Brown wants to see negotiations succeed, but Haidas are becoming impatient watching the Islands' resources leave while talks drag on. "We are trying to sit down and get this Interim Measures Agreement done. I'd like to give them [government] a chance, but it's getting really hard to hold these people back."
Meanwhile the CHN is exploring its legal options, and they are numerous.
"It's a beauty pageant of lawyers, we've got four coming up this week." Some of the finest aboriginal lawyers in Canada are courting the CHN, hoping to be the one picked to take on the case of a lifetime - to go down in history as the first lawyer to prove title for an aboriginal nation. "They expect quite a nice case."
David Boyd, a lawyer and the executive director of the Sierra Legal Defence Fund, says the terms for proving title set out in Delgamuukw point directly towards Haida Gwaii as the most likely place it can be done.
"It will never be easy to prove aboriginal title," Boyd cautions, "But of all the First Nations in Canada, the Haida have probably the strongest case. The Haida are doing the right thing in taking their time."
Boyd imagines the legal possibilities for the case are limitless, but no matter what happens in court, the decisions confronting the judges and their implications would be enormous.
"It would dwarf anything we've seen so far. It would be the most important aboriginal law case in Canadian history." And Boyd warns for that reason it should be considered very carefully. "I can't think of a more important decision the leaders of the Haida will have to make."
In light of both the provincial and federal government's persistent refusal to consider the wishes of the Haida in land use decisions on the Islands CHN president Ron Brown Jr. says that decision is getting easier and easier.
SpruceRoots Magazine - September, 1998