Highest court asked to rule on land title

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The Wet'suwet'en and Gitxsan hereditary chiefs say they have been forced to seek a Supreme Court of Canada ruling in order to be treated as equal partners in land claim negotiations with British Columbia and Canada.

After hitting every step in British Columbia's judicial ladder and securing only a partial victory in their quest to gain Canada's recognition that they own and have jurisdiction over their traditional territories, legal representatives of the hereditary chiefs appeared before the highest court in Canada on June 16, making a one-hour and forty-five minute-long submission concerning the Delgamuukw land claim case. The lawsuit against the province was originally filed in 1984. The case now has the distinction of being the longest-running land claim trial in the history of the Commonwealth.

It could be as long as two years before the court hands down its decision, but hereditary Wet'suwet'en Chief Herb George believes that several recent Supreme Court of Canada decisions indicate the time may be right for an enormously important legal breakthrough in the area of Aboriginal land rights. A decision in favor of the Aboriginal appellants will create a new legal test for determining Aboriginal land title.

"The Supreme Court of Canada has developed a body of law which clearly acknowledges and recognizes the existence of Aboriginal title and the content of that title," Chief George (whose traditional name is Satsan) said. "We're asking the court to declare that we have that kind of title in our land, that it still exists, that this is the nature of it, this is the content, and that the expression given to that title would be as the result of negotiations."

George said British Columbia's treaty process is a game rigged in favor of the province and the federal government. If the Supreme Court agrees that Aboriginal title to land is legitimate under the rule of law, he said, then the hereditary chiefs can return to the table as equal partners.

"The whole issue of Aboriginal title was totally disregarded when British Columbia entered Confederation and it's been wrong since then and the law supports [arguments that it's wrong.] All we're asking for is recognition," George said. "So acknowledge it. Let's get on with it."

Former federal Liberal cabinet member Allan McEachern is now the chief justice of the British Columbia Supreme Court. In 1991, Justice McEachern ruled that Aboriginal title had been extinguished. That decision was condemned by the United Nations Human Rights Commission as "unfortunate," "ethnocentric" and "one-sided."

"At the B.C. Court of Appeal, the court upheld McEachern on the issue of the kind of interest that we had in the land. When we first went to trial we said we owned the land and, of course, that caused all kinds of problems in court because when they heard us saying we owned the land, they heard us saying fee simple. But the court of appeal ruled that our rights couldn't be extinguished prior to Confederation or after Confederation prior to 1982 because they hadn't been because Canada didn't have the Constitutional authority to do so," George said. "And after 1982, our rights were protected by Section 35 of the Constitution Act."

The court action had been on hold for the past three years as the Wet'suwet'en and Gitxsan entered the British Columbia treaty process and attempted to negotiate separate settlements. But provincial negotiators abandoned the talks with the Gitxsan in 1996, saying "no progress was being made."

The Gitxsan then decided to renew its court challenge. The Wet'suwet'en - as co-appellants - found itself reluctantly going back to court despite the fact that its negotiations had produced some progress. At that point, the federal government broke off talks with the Wet'suwet'en, saying it is federal policy not to negotiate while legal action is in progress.

Gitxsan lawyer Gordon Sebastian (Anuthlem buhn) said the plan going in to the Supreme Court was not to dwell o the McEachern ruling which is obviously flawed.

"We want the Supreme Court to act like a dreamcatcher," he said. "They need to let the Gitxsan truth through and stop the provincial and federal team's B.S."