Gitxsan say guidelines on infringement unconstitutional

Page 8

The Gitxsan chiefs are going back to court to challenge elements of the landmark Supreme Court of Canada Degamuukw decision.

They will argue the decision violates the constitution by allowing Aboriginal rights to be infringed upon.

"Delgamuukw made certain pronouncements. It did say that there were unextinguished Aboriginal rights," said Gitxsan chief negotiator, Gary Patsey. "And it gave permission for the crown to infringe on those rights."

The Gitxsan will ask the Supreme Court of Canada to re-examine the case because the decision recognized and defined Aboriginal title to land, but then the court unilaterally ruled that right could be infringed, explained Gitxsan litigation lawyer, Gordon Sebastian.

"By making that statement, the Supreme Court of Canada may have been non constitutional in that it does not have the authority to amend the constitution of Canada," said Sebastian. "It says that now we do have a right, but that it can be infringed and also because it can be infringed the courts set out a process of justification for the infringement."

The government has certain legislative objectives in regard to resources generated from the land that have to be fulfilled to keep the economy alive, explained Patsey.

"Like say the forestry, they are required to harvest so many trees each year to keep the economy going and to generate revenues so that is what they have been doing here," said Patsey. "So they have been trampling all over our rights. Anything that the government has to do according to their legislative objectives, (the decision) gives them permission. But if it is proven that they do infringe on our rights than it has to be with our consent and there has to be a compensation component to it. So now the province hasn't agreed that they have infringed on our rights."

In Delgamuukw, high court gave instruction for a reconciliation process between the Gitxsan and the province of British Columbia.

"Because we all have to live together. So this is in compliance with the Supreme Court of Canada's instructions to reconcile our differences," said Patsey. "We have been trying to get the province to accommodate our interests in the land and to accommodate our rights and title to the land."

To begin formal negotiations an "abeyance agreement" must be signed by both parties. The intent of the agreement is to continue negotiations while it allows for retrial or legal action, explained Patsey.

The Gitxsan lay claim to 37,000 square kilometers in northwest B.C. and, in the new case, will seek to define Aboriginal title as absolute. If they can prove absolute title then their title will be equal to or better than the title the provincial crown claims to exert over the land.

"It won't affect any fee simple prior to 1982. Fee simple is what the white people own, their little land," said Sebastian. "But subsequent to 1982, we will look at that whole situation, but of course we are not going to bounce anybody off. They all obtained their lands through good faith that the government had the authority to give them the land when they paid for it."

The objectives of the retrial to obtain absolute title will accommodate the Gitxsan rights to the land and affirm the government's fiduciary relationship to include the Gitxsan in any decision making process in regard to the land.

While Gitxsan lawyers are currently working on a draft of the abeyance agreement to continue formal negotiations, they are also seeking a judge for the retrial. The new trial will be named Yal, after Aubrey Jackson the Gitxsan chief of Yal, whose traditional name is also Yal.

"We're are trying to find out right now what the relationship between reconciliation and retrial is and that drama is unfolding right now," said Patsey. "I am advocating and I have argued with the chief negotiator for B.C that there is no reason why we couldn't have a twin tracking here. One for retrial and one for negotiation, so we will see what happens next week."