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Delgamuukw ignored, appeal filed

Article Origin

Author

Cheryl Petten, Raven's Eye Writer, SKEETCHESTN FIRST NATION

Volume

3

Issue

11

Year

2000

Page 2

The south-central Skeetchestn Indian band has announced plans to appeal a recent B.C. Supreme Court decision regarding Aboriginal title at Six-Mile Ranch.

The announcement was made by Skeetchestn Chief Ron Ignace at a news conference held in the Shuswap Nation Tribal Council boardroom on Feb. 15.

According to information provided by the Skeetchestn Indian band, the B.C. Registrar of Lands had previously refused to register notice of the band's Aboriginal title as an interest in the land at Six-Mile Ranch. In January, the B.C. Supreme Court upheld that decision, indicating that, under the B.C. Lands Act, Aboriginal title cannot be registered as an interest in land.

According to Ignace, the proposed Six Mile Ranch development is within the traditional territory of the Skeetchestn Indian band and the Kamloops Indian band. The controversy revolves around 1,000 acres of fee simple land that developers Kamlands Holdings Ltd. want to turn into a lakeside resort. Court documents reveal the proposed development includes "a marina, golf course, an equestrian center, 129 equestrian homes on quarter-acre lots, 518 townhomes, bungalows, multi-storey living units, three hotels, and 75 condominium hotel suites convertible into 150 hotel rooms."

Ignace explained that the land in question was originally included within the provincial agriculture land reserve. As such, the local bands could still maintain their ties to the land. Now that developers have successfully lobbied to have the lands taken out of the agricultural land reserve, and a commercial development is being proposed, Ignace said Native people in the area are "afraid it would severely impact and hamper our ties to that land. It's a major part of our traditional territory . . . and, according to Delgamuukw, if there is to be that kind of impact on our traditional territory, it is incumbent upon the province to enter into good faith negotiations with us, and they neglected to do that."

In response, Ignace said, the Skeetchestn band launched a court case, which ended with the B.C. Supreme Court ruling against Aboriginal rights and titles. In ruling against the band's claim, Ignace said, the court was using the Uukw ruling as its precedent - a ruling that preceded the Delgamuukw ruling. Ignace maintains the Uukw ruling has been overtaken by Delgamuukw, and the court should be looking at Delgamuukw to make its decision.

"The judge said he felt that Uukw was still good law," he said. "We're moving forward in saying that Delgamuukw says that we have an interest in the land."

Leslie Pinder is the lawyer representing the band in the Six-Mile Ranch issue. Pinder told Raven's Eye the Uukw case is actually a case that arose in 1987 as part of the Delgamuukw litigation.

"In the course of the Gitxsan/Wet'suwet'en litigation, they sought to file a notice of their claims against certain Crown lands and the registrar of land titles refused. It was appealed to the court. The court allowed it. It was appealed to the court of appeal and they restored the refusal, so they lost. But all of that was decided, of course, before Delgamuukw, so it was before the Supreme Court of Canada made any ruling, " Pinder explained. "Our point is that the ruling in Delgamuukw has overtaken what the court of appeal did and sheds light on the nature of Aboriginal title . . . and so we just shouldn't go back to Uukw and say 'this is the law.' "

She said of the Honourable Mr. Justice G.W. Lamperson's decision to dismiss the appeal of the registrar's decision: "He follows the Uukw case, really saying, no matter how you cut it, the provincial land registry system is set up for one purpose, which is to have titles transferred from one person to another - fee simple titles transferred from one person to another - and this is Aboriginal title and it doesn't fit. And our point is, well, if fee simple title does not trump Aboriginal title, and it doesn't, and he's very clear that it doesn't, and the Supreme Courtof Canada is clear that it doesn't, then there needs to be a way for people to know that they're buying a title which is subject to Aboriginal title. And, because they're buying a title and the land registries system is set up to transfer those titles, that's the place where we need to say there's a claim here . . . . It's a very compelling, practical argument. He just says, fee simple title is subject to Aboriginal title, it doesn't fit, but carry on."

The Skeetchestn Indian band is now appealing the decision to the Court of Appeals in B.C. Such appeals are usually heard by a panel of three judges, but Ignace explained the band is requesting a panel of five judges to hear the appeal. During the appeal process, the band will be asking the panel to overturn the Uukw ruling, and recognize Delgamuukw. The notice of appeal has been sent, but Ignace said the appeal would not be heard until the fall.

Ignace said the Skeetchestn Indian band has been fighting against the Six Mile Ranch development for about three years.

He said the former federal minister of Indian Affairs had told the band that the federal government has no legal obligation to involve itself in this case; that it is a provincial matter. Ignace, however, doesn't see it that way.

According to Ignace, the Delgamuukw decision says Aboriginal rights go beyond only reserve land. They go outside of reserve land, up to and including a fundamental interest and a fundamental economic interest.

"We had hoped that the minister would be involved in this, in our case, but they have taken an interpretation that throws us to the wind," he said.

Ignace said his band is prepared to negotiate with the provincial government regarding the Six-Mile Ranch issue.

"We've said that we're prepared to negotiate with the provincial government, if they chose not to go to court, using the principles laid out in Delgamuukw as a process of negotiation, negotiating a solution."

Ignace explained that, before the recent court ruling, the rovince had actually been at the negotiating table with the band and attended two preliminary meetings, then walked away from the negotiating table. Since then, a new NDP leader has taken over as premier and there will likely be new members of the legislature appointed, Ignace explained.

"We're appealing again to the new premier of the province of British Columbia to meet with us to explore negotiations, and negotiate a settlement," he said.