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The Chief Justice of the Supreme Court of Canada dealt a blow to the legacy of colonialism when he handed down his 87 page decision in the Delgamuukw v. British Columbia land claim case on Dec. 11.
Justice Antonio Lamer wrote the decision, with all his fellow justices on the highest court in the land concurring, which completely overturned the 1991 decision of then British Columbia Supreme Court Justice Allan McEachern who dismissed the oral testimony of Elders and chiefs and ruled that Aboriginal rights to land in the province had been distinguished in 1871.
The 13-year-long process which has taken Earl Mundoe (whose traditional Gitxsan name is Delgamuukw) and his fellow litigants (the hereditary chiefs of 37 other Gitxsan Houses or clans and 12 Wet'suwet'en Houses) through the Canadian civil law process, has resulted in new law and in more detailed definitions of existing law.
Despite the fact that the highest court ordered the parties to go back to square one, saying errors by trial judge McEachern invalidated the entire process, making it necessary to re-try the case, the ruling by the chief justice advanced and clarified the legal definition of Aboriginal rights in a way that has leaders excited.
"This is a judgment the Gitxsan people have worked towards since the first European entered our traditional territory over 130 years ago," said Gitxsan chief negotiator Mas Gak (Don Ryan). "In this case the Supreme Court came down on the side of justice. We are extremely happy for all First Nations people in B.C., in Canada and around the world."
Previous Supreme Court decisions had given Aboriginal land title a very narrow scope, one that left First Nations last in line when it came to deciding who exercised political control over their traditional lands and resources. The latest decision recognizes the concept of Aboriginal title as a form of ownership.
Justice Lamer described Aboriginal ownership as sui generis (a Latin term which means unique). It is not exactly the same as typical fee simple land ownership because there are limitations on how land held by Aboriginal title can be used or disposed of.
"Aboriginal title is sui generis, and so distinguished from other proprietary interests, and characterized by several dimensions. It is inalienable and cannot be transferred, sold or surrendered to anyone other than the Crown. Another dimension of Aboriginal title is its sources: its recognition by the Royal Proclamation of 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of Aboriginal law pre-existing assertion of British sovereignty. Finally, Aboriginal title is held communally," the chief justice wrote.
The nature of land ownership rights was changed dramatically by that part of the Delgamuukw decision. Previously, Aboriginal ownership was considered 'usufructuary,' a legal term which describes the kind of relationship which medieval serfs had with their feudal lord. Serfs had the right to a windfall; they could harvest branches for firewood if the branches were blown off of trees by the wind. But they had no right to cut down the trees. There was no sense of ownership: title and all rights remained with the Crown or the feudal lord. The serfs remained on the land at the pleasure of the Crown.
Lamer looked at existing law and reasoned that, since Aboriginal sovereignty existed before the Crown declared sovereignty in 1871 in British Columbia, there needed to be some attempt in law to reconcile the conflicting claims to sovereignty. He reasoned that common law traditions which guide the legal system recognize that possession is compelling proof of ownership. If First Nations people can prove they occupied the land at the time the Crown asserted sovereignty, then the Crown must recognize the First Nations' Aboriginal title to the land.
The court decision also broadened the possible uses of land held through Aboriginal title.
"The exclusive riht to use the land is not restricted to the right to engage in activities which are aspects of Aboriginal practices, customs and traditions integral to the claimant group's distinctive Aboriginal culture," Lamer wrote. "Canadian jurisprudence on Aboriginal title frames the 'right to occupy and possess' in broad terms and, significantly, is not qualified by the restriction that use be tied to practice, custom or tradition. The nature of the Indian interest in reserve land, which has been found to be the same as the interest in tribal lands, is very broad and incorporates present-day needs. Finally, Aboriginal title encompasses mineral rights and lands held pursuant to Aboriginal title should be capable of exploitation. Such a use is certainly not a traditional one. The content of Aboriginal title contains an inherent limit in that lands so held cannot be used in a manner that is irreconcilable with the nature of the claimants' attachment to those lands. This inherent limit arises because the relationship of an Aboriginal community with its land should not be prevented from continuing into the future. Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group. If lands are so occupied, there will exist a special bond between the group and the land in question such that the land will be part of the definition of the group's distinctive culture. Land held by virtue of Aboriginal title may not be alienated because the land has an inherent and unique value in itself, which is enjoyed by the community with Aboriginal title to it. The community cannot put the land to uses which would destroy that value.
"Finally, the importance of the continuity of the relationship between an Aboriginal community and its land, and the non-economic or inherent value of that land, should not be taken to detract from the possibility of surrender to the Crown in exchange for valuable consideratin. On the contrary, the idea of surrender reinforces the conclusion that Aboriginal title is limited. If Aboriginal peoples wish to use their lands in a way that Aboriginal title does not permit, then they must surrender those lands and convert them into non-title lands to do so."
In 1982, Section 35 of the newly-proclaimed Charter of Rights and Freedoms recognized and affirmed Aboriginal rights as defined by existing laws. Chief Justice Lamer was required to look at the law as it existed before 1982 and determine if the law could support Aboriginal title. He decided that existing common law land ownership principles supported the existence of Aboriginal title.
The judge urged Aboriginal, federal and provincial leaders to take their negotiations out of the courts. He wrote that all parties should recognize what is right under the law and then work to negotiate mutually beneficial, fair treaty agreements.
There were other equally important advances in Aboriginal rights case law in the Delgamuukw decision. The trial judge was criticized for not giving more weight to oral testimony. That criticism amounts to a formal recognition in law that oral testimony of First Nations history is now acceptable in Canadian courtrooms.
The court also spelled out how other governments can infringe on Aboriginal title and what legal remedies are available to balance that infringement.
"Constitutionally recognized Aboriginal rights are not absolute and may be infringed by the federal and provincial governments if the infringement (1) furthers a compelling and substantial legislative objective and (2) is consistent with the special fiduciary relationship between the Crown and the Aboriginal peoples. ... There is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere consultation. And third, lands held pursuant to Aboriginal title have an inescapable economic component which suggests that compensation is relevant to the question of justifiction as well. Fair compensation will ordinarily be required when Aboriginal title is infringed," the court wrote.
Aboriginal leaders in British Columbia and across Canada were ecstatic when they learned the details of the decision.
Assembly of First Nations National Chief Phil Fontaine called it "one of the most important decisions in Canadian legal history" in a letter he wrote to Prime Minister Jean Chretien. Fontaine urged Chretien to call an immediate first minister's meeting "with our full and equal participation" so that the new direction described in Delgamuukw can be implemented. Chretien has not responded.
British Columbia's First Nations Summit Chief Joe Mathias predicts the court decision will dramatically alter the province's treaty process. The decision "restores the rule of law and justice for First Nations," he said.
Test for title
Supreme Court of Canada Chief Justice Antonio Lamer described in the Delgamuukw decision how a court of law must look at the facts when determining Aboriginal title. The following is an extract from the decision:
"Key" factors for recognizing Aboriginal rights under s. 35(1) are met in the present case. First, the nature of an Aboriginal claim must be identified precisely with regard to particular practices, customs and traditions. When dealing with a claim of 'Aboriginal title,' the court will focus on the occupation and use of the land as part of the Aboriginal society's traditional way of life.
Second, an Aboriginal society must specify the area that has been continuously used and occupied by identifying general boundaries. Exclusivity means that an Aboriginal group must show that a claimed territory is indeed its ancestral territory and not the territory of an unconnected Aboriginal society. It is possible that two or more Aboriginal groups may have occupied the same territory and therefore a finding of joint occupancy would not be precluded.
Third, the Aboriginal right of possession is based on the continued
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