Lawyers say spirit of Delgamuukw ignored

Page 3

Lawyers who advise Aboriginal leaders in the province of British Columbia are crying foul after watching the slow evolution of the provincial and federal governments' response to the Delgamuukw decision.

"Those people are resisting the implications of the real gains of Delgamuukw," Vancouver lawyer Stuart Rush told the Union of British Columbia Indian Chiefs' annual meeting on Oct. 20. "Since we won this case, the decision will have to be defended."

Rush and others find it disturbing that a court decision the political establishment finds troublesome can be resisted or even ignored. Lawyer Louise Mandell said Aboriginal people are going to have to aggressively pursue the legal rights the Supreme Court of Canada has ruled they possess because mainstream Canadian society isn't prepared to voluntarily change. In all land claim cases, she said, lawyers arguing for either the provincial or federal Crown have offered a series of what she called excuses for dispossessing the Indigenous inhabitants of the land.

"They've all been defeated," she said. "What the court said to the province is you haven't offered one legal excuse to justify the dispossession of Aboriginal people."

In the year since the Delgamuukw decision was handed down, Mandell said, it has become evident that more work needs to be done to take advantage of the legal breakthrough the case represents.

"Delgamuukw is not about sitting in the band office and waiting for the next phone call," she said. "When the federal government does nothing, which they haven't, and the province does nothing, it's not an accidental response, it's business as usual."

Assembly of First Nations Vice Chief for British Columbia, Herb George, is a lawyer who worked for his Wet'suwet'en people on the Delgamuukw case. He also believes it's time to get more aggressive about forcing authorities to comply with the law of the land as defined in the court case. He sees the provincial establishment doing its best to "pull down the blind on the window of opportunity" that Delgamuukw represents.

#"The future we want is within us to take," George said. "We have to take it. When it comes to jurisdiction and authority, they're not going to give it to us. They're going to hold it away from us for as long as possible."

Chief Herb George

A seasoned Aboriginal rights lawyer who has been representing Aboriginal interests in courtrooms for 23 years, Mandell compared the way Canadian authorities are dealing with Delgamuukw to the way United States President Andrew Jackson dealt with his country's Supreme Court when it ruled that Cherokee people had land rights in the southern states. Despite the ruling, the Cherokees were forcibly removed from their land, resulting in the infamous Trail of Tears, which has been described as one of the biggest massacres in history.

Shuswap Tribal Council Chief Art Manuel believes tough measures must be employed when the executive branch of government starts pulling in the opposite direction of the judicial branch.

"We need to change the prime minister's mind," Manuel said. "The Cherokees were given their Delgamuukw decision in the 1830s. It turned into President Jackson versus Justice Marshall - the executive versus the judicial - and thousands died in what became known as the Trail of Tears. [Jean] Chretien's choice now is: [Supreme Court Justice] Antonio Lamer or Andrew Jackson? That's the choice that's facing all Canadian people."

Stuart Rush said the government has a duty to embrace Delgamuukw, a duty that doesn't include looking for ways to sidestep the decision.

#"The reason consultation was imposed upon government is because Aboriginal title land is land over which there is a choice about usage," the lawyer said. "If government is going to pre-empt First Nations over use of land they must consult fully, and consultation is not just a question of passing information. It's also a matter of determining how the Aboriginal interest is accommodated and he basic principle is the greater the intrusion, the greater the requirement of consultation. It's not just notice. It's not just information. It requires that your concerns are addressed."

Chief Art Manuel

Mandell and Rush both suggested that labor relations law as it applies to good faith negotiating could be used to govern Crown tactics during the consultation and negotiation process with First Nations. Rush said the negotiations must be conducted with the clear goal in mind of reaching a fair settlement and the fact that Aboriginal title has been defined and recognized in Delgamuukw means that provincial and federal governments have lost their advantage at the negotiating table because Aboriginal title is a right to ownership of the land.

Since the Supreme Court of Canada has ruled that British Columbia First Nations have title to their traditional lands in the province that is equal in validity to Crown title, the power structure has shifted, the lawyers say, and sooner or later, the province and the federal government are going to have to face it.

Stuart Rush doesn't think that's going to happen without a few more decisive legal victories.

"I don't think this legal battle is over," he said.