The Pleasure of the Crown. Dara Culhane
fill 23,503 pages of text, 82 binders of authorities now hold 9,200 pages of exhibits. An estimated 25 million dollars of public funds had been spent.
The issue before the court can be stated simply: The Gitksan and Wet’suwet’en had asked for legal recognition of their ownership and jurisdiction over 22,000 square miles of land and resources in the northwest region of the Province of British Columbia, Canada. They based their claim on the fact that they are descendants of people who lived there, in the same territory, since the beginning of time as they conceptualize it. When the Europeans arrived during what they call the eighteenth century, the ancestors of contemporary Gitksan and Wet’suwet’en peoples were already living there. Neither the Gitksan nor the Wet’suwet’en ever entered into treaties with Britain or Canada, the governments representing the interests of the newcomers. Nor was there a war in which their territory was conquered militarily by the new colonial forces. Nor were any rights to land or resources ever sold by Indigenous peoples to any individual settlers, or to the British or Canadian governments. The Gitksan and Wet’suwet’en, therefore, continue to consider themselves the rightful owners and governors of the territory in question. They say they hold “Aboriginal title and rights” to this land.
The Province of British Columbia and the Government of Canada opposed the Gitksan’s and the Wet’suwet’en’s claims. The Crown asked the court for “a declaration that the Plaintiffs have no right, title or interest in and to the Claim Area, and the resources thereon, thereunder or thereover.” Since 1871, when British Columbia joined Canadian Confederation, all successive governments of that province had taken the position that no Aboriginal rights recognizable by “civilized law” existed prior to Britain declaring sovereignty over the territory. And even if those rights had existed, the Province of British Columbia’s argument continued, the simple act of assertion of sovereignty by a European power over those lands was sufficient to extinguish any pre-existing Aboriginal title and rights. Legally, the Province of B.C. told First Nations, you do not exist. This position provided the rationale for provincial governments’ consistent refusals, until 1990, to participate in any discussions or negotiations with federal government and Aboriginal representatives on Aboriginal title and rights issues.
During the week preceding the release of Chief Justice McEachern’s decision in the Delgamuukw case, the Vancouver Sun, British Columbia’s largest circulation daily newspaper, ran a series of articles entitled “Judgment Day” in which spokespeople from government, industry, labour and the general public expressed the view that at least a partial court victory for the Aboriginal plaintiffs was anticipated by all concerned. Gitksan and Wet’suwet’en Tribal Council representative Herb George told the press that he expected to see “the last little trace of honour in the Crown” reflected in the judgment. “We’re not naive,” George said, “but we can still dream.”1
There seemed to be good cause for George’s cautious optimism. Between 1987, when the Delgamuukw v. R. trial began, and 1991, when it concluded, some significant changes had occurred in the legal and political landscape of Aboriginal and non-Aboriginal relations in British Columbia. In 1989, the First Nations Congress, representing most of the 180 First Nations in B.C., had initiated discussions with representatives of the province’s leading forestry, fishing and mining companies. The First Nations leaders’ goals were to educate the business sector about the historical and legal bases of Aboriginal title, to calm industry fears about potential threats to economic stability in the event of recognition and settlement of Aboriginal claims, and to begin to build a foundation for direct negotiations between industry and First Nations governments on issues of economic development.
Following these conferences, held at the exclusive Whistler Mountain Resort in the traditional territory of the Squamish First Nation, British Columbia Social Credit Premier Bill Vander Zalm appointed a “native affairs advisory council” to serve as a consultative committee. The advisory council held meetings with key players throughout the province during the spring and summer to discuss Aboriginal land claims. Vancouver Sun columnist Vaughn
Palmer observed that, “The thinking in government circles is that the court will probably recognize aboriginal title…that it still exists today.”2
On May 31, 1990, less than a year before Chief Justice McEachern’s judgment in the Delgamuukw case was delivered, the Supreme Court of Canada had overturned earlier decisions of the British Columbia Supreme Court and the B.C. Court of Appeal in the case of Regina v. Sparrow. The Supreme Court concluded that certain Aboriginal rights—in this case the fishing rights of the Musqueam First Nation—had existed in British Columbia prior to the arrival of Europeans; had not been extinguished by the simple assertion of British sovereignty during the colonial era; and were now protected by section 35(1) of the Constitution Act (1987), the supreme law of Canada.
Although the Supreme Court of Canada, in their decision in the Sparrow case, upheld the position that, since Britain declared sovereignty, the “underlying title to all land” in Canada is vested in the Crown, they ruled that Aboriginal rights could not be implicitly extinguished by the mere declaration that British sovereignty had been asserted. Rather, the Crown would have to explicitly express their “clear and plain intention” in order to legally extinguish Aboriginal title to land. The first premise of the Province of British Columbia’s position since 1871 had been that no legally-recognizable Aboriginal title existed at the time the British arrived in what is now British Columbia. Therefore, according to the Province of B.C., an explicit expression of intent to extinguish title was neither required nor appropriate: what does not exist, could not be recognized. What could not be recognized, need not be extinguished.
The Supreme Court of Canada’s rejection of the implicit extinguishment argument in the Sparrow case, their reaffirmation of the requirement that the Crown make their intention to extinguish Aboriginal title explicit, and their finding that this had not been done, and hence Aboriginal rights still existed in the province, was a significant victory for B.C. First Nations: the provincial government could now be legally required to acknowledge their existence.
The Sparrow decision was hailed by many as the judgment that would bring an end to the long—and increasingly contentious—chapter in Canadian legal history in which colonial law, justified by archaic nineteenth-century notions of European superiority and Aboriginal inferiority, had dominated the courts. It was hoped that the Sparrow decision would provide the required legal framework within which a new, more equitable relationship between Aboriginal and non-Aboriginal people in Canada could be developed, a relationship that would reflect contemporary commitments to social justice and equality in a multicultural Canada. Lower courts in British Columbia during 1990-1991 had granted several First Nations’ applications for injunctions, halting development on their lands until the Aboriginal title question was settled by the courts.
Public opinion polls conducted during 1990 and 1991 had consistently shown that the majority of people in British Columbia thought the provincial government should reconsider its historic refusal to discuss land claims with the First Nations and should proceed, finally, to negotiate an agreement with them. Premier Vander Zalm—heeding the courts, public opinion polls, and increasing pressure from corporate representatives seeking government guarantees that British Columbia could indeed boast a “safe investment climate”—had allowed that the issue of land rights negotiations with First Nations should be revisited. For the first time in the province’s 119-year history, a provincial Ministry of Aboriginal Affairs had been inaugurated in the Fall of 1990.
After nearly 100 years of political lobbying for the right to even file such a petition in court, the Nisga’a3 First Nation—neighbours of the Gitksan and Wet’suwet’en—had been the first to launch a legal claim for recognition of their Aboriginal title in 1969. On March 7th, 1991, the day before Chief Justice McEachern’s ruling in the Gitksan and Wet’suwet’en case was handed down, a landmark tripartite agreement between the Nisga’a Tribal Council and the federal and provincial governments was announced.
No one had anticipated what did happen on March 8, 1991.
Chief Justice Allan McEachern had not been swayed by public opinion polls or newspaper editorials, or by the Supreme Court of