Grant, Peter R. --- "Delgamuukw and Others v The Queen" [1991] AboriginalLawB 57; (1991) 1(52) Aboriginal Law Bulletin 26

• Delgamuukw And Others V The Queen
• Nature Of The Claim
• Findings Of The Court
• Extinguishment

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Delgamuukw and Others v The Queen

Delgamuukw v The Queen

Supreme Court of British Columbia

Allan McEachern CJ.

8 March 1991 - [1991] 3 WWR 97

Casenote by Peter R. Grant

Nature of the claim

Delgamuukw v The Queen (1991) 3 W WR 97, popularly known as the Gitksan Wet'suwet'en land claim decision, was the longest Aboriginal land claim trial in Canadian and Commonwealth history.

In 1984, 51 Gitksan Houses and 13 Wet'suwet'en Houses commenced an action claiming aboriginal title, including ownership and jurisdiction, over their traditional territory. The total number of House members is approximately 7500. The claim was made for a territory of approximately 22 000 square miles consisting of 133 individual House territories of the Gitksan and Wet'suwet'en.

The action was initiated in 1984 and the trial commenced in May 1987. Evidence was heard in court over 369 days. There was also extensive evidence from elders taken out of court. The trial was completed on 30 June, 1990 and judgement rendered on 8 March, 1991.

The central claim of the Gitksan and Wet'suwet'en Plaintiffs was that they had inhabited their territories since time immemorial and owned and exercised jurisdiction over the territories when English sovereignty was first established by the Oregon Treaty in 1846. It was agreed that the Plaintiffs were never conquered by force of arms, had signed no treaties and had not voluntarily surrendered their land. Much of the length and complexity of the trial resulted from the refusal of the Crown to concede that the Plaintiffs were descended from persons who owned and exercised control over the territory in pre-contact times. The precise lands used by the Gitksan and Wet'suwet'en prior to contact, and at present, were hotly contested by the Crown.

The Plaintiffs tendered evidence through their Chiefs, as well as archaeological, biophysical, linguistically, genealogical and anthropological evidence. Extensive evidence of the oral histories of the Gitksan and Wet'suwet'en claim was distinctive on at least two bases. Firstly, this was the first Aboriginal claim in which a large body of evidence tendered was from the Gitksan and Wet'suwet'en peoples themselves demonstrating their understanding of the nature of their rights, based on their oral histories. Such evidence was corroborated by anthropological evidence. Secondly, the Gitksan and Wet'suwet'en have described their aboriginal rights, based on the nature of their social organisation, as rights of ownership and jurisdiction. The rights of ownership are based on the right of exclusive possession of the land. This is consistent with the judgement of Hall J., of the Supreme Court of Canada, in Calder v Attorney General of British Columbia (1973), 107 DLR (3rd) 59, in which he held that

.... possession is of itself proof of ownership. Prima facie, therefore, the Nishgas are the owners of the lands that have been in their possession from time immemorial .... The Nishgas in fact are and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law...

The Plaintiffs articulated their claim to ownership of their land as the right to exclusive possession of the land. There was a specific waiver of any claim against lands that had been transferred in fee simple prior to the commencement of the court action.

The second part of the Plaintiffs' claim was one of jurisdiction. Although the Court in the Judgement equated 'jurisdiction' with 'sovereignty', it was conceded by the Gitksan and Wet'suwet'en that under the principles of the common law, the underlying title to the land rested in the Crown. In other words, there was a restriction on alienation based on the principles established in the 1830's by Chief Justice Marshall, of the United States Supreme Court, that Gitksan and Wet'suwet'en jurisdiction did not extend to the freedom to alienate the land and resources to third parties.

Findings of the Court

On 8 March 1991, the Chief justice dismissed all the Plaintiffs' claims. His reported judgement runs approximately 500 pages. He found that the land claimed was a "vast emptiness" (p.125); that the claimants' history was "romantic" and much, such as the assertion they had been on the land "since the beginning of time" (p.168) or that "God gave this land to them" (p.130), "is not literally true."(p.168)

Further, he described the Plaintiffs as "primitive", and "hardly amendable [sic] to obedience to anything but the most rudimentary form of custom." (p.202) The Plaintiffs themselves were "culturally unprepared" for "the new regime" or "for the disciplined life of a tax paying agriculturalist." (p.268) Additionally, they were "not as industrious ... as was thought to be necessary" and were conquered "by an invading culture and a relentless energy with which they would not or could not compete." (p.269) Their "aboriginal life" was, at best, "nasty, brutish and short" (p.126) and he found that they had never exercised jurisdiction over their "largely empty lands." (p.381)

He held that treaties entered into by the Crown were not evidence that the Crown recognised aboriginal title. He thought that too much was made of these treaties to which he could attach no legal consequences(p.262). Of such a proposition, Hall J. in Calder v Attorney General of British Columbia (1973) S.C.R. 313, said:

"Surely the Canadian treaties, made with such solemnity on behalf of the Crown, were intended to extinguish the Indian title. What other purpose did they serve? If they were not intended to extinguish the Indian right, they were a gross fraud and that is not to be assumed." (p394)

McEachern CJ held that such rights were limited to "aboriginal uses" which pre-dated European "influence". Hence trapping for the fur trade by the Gitksan and Wet'suwet'en peoples, which predated the assertion of English sovereignty by at least 20 years, was not "an Aboriginal use." (p371)

He held that aboriginal rights were non-proprietary (pp346,365) and that in any event, all aboriginal rights in British Columbia (B.C) were extinguished by implication during the colonial period of 1857-1871.(p.411) Curiously excepted from this mass extinction is the only aboriginal right to be pronounced on by the Supreme Court of Canada - a fishing right found by the court to "exist" in Sparrow v The Queen [199014 WWR 335. (pp. 361, 412) (See AboriginalLB 48/12)

Finally, the Chief justice chastised the Plaintiffs for concentrating "for too long on legal and constitutional questions such as ownership, sovereignty and 'rights', which are fascinating legal concepts" but incapable of solving "the underlying social and economic problems." (p.477) He urged native people to "make their way off the reserves" and face "the difficulties of adapting to changing circumstances." (p.479) It has been this failure to adapt, "not limited land use, [which] is the principal cause of Indian misfortune."

Extinguishment

The findings of the Court which have the broadest impact on Aboriginal claims in B.C are set out in the summary of the Chief Justice:

'The pre-confederation colonial enactments construed in their historic setting exhibit a clear and plain intention to extinguish aboriginal interests in order to give an unburdened title to settlers, and the Crown did extinguish such rights to all the lands of the colony. The plaintiffs' claim for aboriginal rights are accordingly dismissed."(p.ix)

This finding of the Court is based on an interpretation of an intention during the colonial period in which colonialist and racist attitudes were acceptable. The Court found that the amalgam of thought and intention at that time, although not expressly set out in the legislation, indicates that the colonial officials of the day intended implicitly to extinguish aboriginal title and the rights of ownership to the territories.

The paradox of this finding is that the handful of men whose writings are now relied upon by the B.C Supreme Court to show a clear and plain intention to extinguish aboriginal title did not dare to suggest to the aboriginal peoples of B.C, in the last century, that it was their intention to extinguish aboriginal title. If they had done so, they would have faced major opposition and been in serious jeopardy as the aboriginal peoples vastly outnumbered the non-Indian population at the time.

The Court found that the extinguishment of the right of jurisdiction was actually the extinguishment of sovereignty. The Court rejected any concept that there could be a joint jurisdiction or authority over the land, resources, and Gitksan and Wet'suwet'en people. This is particularly surprising in view of the reality that Canadian courts, like Australian courts, have had to deal with the federal system in which there is often a split jurisdiction. By recasting the Plaintiffs' claim from one of 'jurisdiction' over the land and resources, to a claim for 'sovereignty', the Court could easily dismiss that claim and not grapple with the issue of the co-existence of a right of jurisdiction to make decisions over the land, resources and people.

The Court then went on to deal with the extinguishment of aboriginal rights. It had no difficulty finding that the people had a right to exercise their 'Feast' system and the passage of names. However, it specifically excluded from that right, the right to deal with lands and resources. The overwhelming evidence of the Gitksan and Wet'suwet'en was that the passage of names of the head Chiefs of Houses included the passage of territories and fishing sites. The Court dealt with this component of 'aboriginal rights' on the basis that it was extinguished in the colonial period by the passage of the land ordinances.

After dismissing the claims, the Court made some proposals in the form of Brief Comments. Unfortunately, they are reminiscent of the assimilationist policy of the government of Canada and other colonial governments from an earlier time. The Court stated:

"Indians have had many opportunities to join mainstream Canadian economic and social life. Some Indians do not wish to join, but many cannot. They are sometimes criticized for remaining Indian, and some of them in turn have become highly critical of the non-Indian community.

This increasingly cacophonous dialogue about legal rights and social wrongs has created a positional attitude with many exaggerated allegations and arguments, and a serious lack of reality. Surely it must be obvious that there have been failings on both sides. The Indians have remained dependant for too long. Even a national annual payment of billions of dollars on Indian problems, which undoubtedly ameliorates some hardship, will not likely break this debilitating cycle of dependence.

It is my conclusion that the difficulties facing the Indian populations of the territory, and probably throughout Canada, will not be solved in the context of legal rights. Legal proceedings have been useful in raising awareness levels about a serious national problem. New initiatives, which may extend for years or generations, and directed at reducing and eliminating the social and economic disadvantages of Indians are now required "(p299)

And further that

"There must, of course, be an accommodation on land use which is an ongoing matter on which it will not be appropriate for me to offer any comment except to say again that the difficulties of adapting to changing circumstances, not limited land use, is the principal cause of Indian misfortune."(p.300)

In short, the Court found that the difficulty faced by the Aboriginal nations of Canada was not created as a result of their unlawful dispossession of lands.

All of the major findings of the Court in this case, including findings of fact, are under appeal. The Appeal is scheduled to commence on April 6, 1992 and complete on June 26, 1992 before a panel of five judges on the British Columbian Court of Appeal. Although it is not predictable at the present time, it is assumed by all parties that the case will ultimately be resolved by the Supreme Court of Canada.

Note An assessment of this case - and of the Bear Island case - by Richard Bartlett, will appear in the December issue of the Aboriginal Law Bulletin.