Keon-Cohen, Bryan --- "Book Review - Aboriginal Title in British Columbia: Delgamuukw v The Queen" [1993] AboriginalLawB 52; (1993) 3(64) Aboriginal Law Bulletin 30

• Book Review-Aboriginal Title In British Columbia: Delgamuukw V The Queen

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Book Review -

Aboriginal Title in British Columbia: Delgamuukw v The Queen

by Frank Cassidy

Oolichan Books* and the Institute on Public Policy, Montreal (1992), 330pp.

Reviewed by Bryan Keon-Cohen

It's sometimes said that the Australian High Court is ‘close’ to the Canadian Supreme Court - or, at least, that our High Court justices consider Canadian jurisprudence to be more relevant and influential than that of the Supreme Court of America. In the arena of Aboriginal rights, this friendly connection may be seen as fortunate, since several significant Canadian cases in recent years[1] have shown a tendency to recognise and develop Indian, Inuit and Metis rights. Canadian constitutional reform has, to a limited degree, tended in the same direction with the enactment of s35 of the Constitution Act 1982[2]. However, the judgment, following a lengthy trial in a large Indian land claim, Delgarnuukw, handed down in 1991, being the subject of this book, constitutes a major reversal of this trend, and a damaging loss for the plaintiffs, the hereditary chiefs of the Gitksan and Wet'suwet'en peoples. Rather like Blackburn J's decision in the Cove case of 1972[3], McEachern CJ's decision at first instance in Delgamuukw has been roundly criticised. A fair sampling of such criticism appears in this book, being edited proceedings of a conference held in Canada in September 1991, at a time when the plaintiffs' appeal to the BC Court of Appeal, in a judgment handed down on 25 June 1993, rejected most, but not all, of the trial judge's findings, thus justifying many of the statements in this book. The plaintiffs had asserted, and as this book forcefully shows, continue to assert, that they enjoy jurisdiction over, and native title to, 58 000 square kilometres of their traditional territories in NW British Columbia. Chief Justice Allan McEachern forcefully dismissed these claims, asserting that the Crown had extinguished Aboriginal rights between 1858 and 1870 and that "a legal and jurisdictional vacuum ... existed prior to British sovereignty." This important decision on appeal is not available at the time of writing, but according to the book's editor, Frank Cassidy, in an article recently published in Canada, the Court of Appeal "rejected this denial". In language reminiscent of the Mabo debate now raging ill Australia, the Court of Appeal:

" declared that, while BC has full constitutional power to make laws with respect to and dispose of public lands, it has never had the constitutional capacity to extinguish Aboriginal rights. Before 1982, the government of Canada had this power, and might have authorised a province to extinguish them, but in BC it did not do so. Since 1982 section 35 of the Constitution has provided for the recognition and affirmation of these rights. The Court of Appeal stated clearly that any interests in land and resources created by the province before 1982 - private property, forestry and mining licences - remain valid, as do existing Aboriginal rights. After 1982, the province's position may not be as dear. In any case, the Court suggests that Aboriginal peoples may be able to seek damages from the province, since it has infringed upon and interfered with their exercise of Aboriginal rights. However, the Court split 3-2 on the nature and extent of Aboriginal rights. Speaking for the majority, Mr Justice Alan MacFarlane maintained that the plaintiffs did not prove their ownership of and jurisdiction over the land during the original trial proceedings. He held that they have the rights only to use and occupy parts of the claimed territory, and not to exclude others from land and resources or to govern, manage, conserve or transfer them. ...[I]n a tightly reasoned dissent, Mr. Justice J. Douglas Lambert argued that "there are fundamental errors of both law and fact in the (original) reasons of the trial judge'. He found that the plaintiffs have "Aboriginal tide to occupy, use and enjoy lands as well as Aboriginal rights of self-government and self-regulation and Aboriginal substance rights". If the case proceeds to the Supreme Court of Canada, it may well be that the Lambert dissent, rather than the majority argument, will predominate."

This case obviously has important implications in the context of Australia's developing response to the Mabo decision. Any appeal (and cross-appeal) to the Supreme Court of Canada should be closely watched by Aboriginals and their advisers - especially in regard to those aspects of the case dealing with claims to self-government or 'sovereignty'. Cassidy's book thus still remains a most valuable and informative analysis of the plaintiffs' struggle for the recognition of their land and of the many substantive legal issues thrown up, and unresolved, by Delgamuukw (and by Mabo), eg., fiduciary obligations of the Crown. The book edits and reprints a large number of papers presented to the conference.

These are written (or spoken) by leaders of the plaintiff group, their lawyers, academics, the deputy AG of British Columbia, members of parliament and leaders of other indigenous organisations from across Canada. In each of these various papers the background to the case, the objectives of the plaintiffs and the trial judgment itself are summarised. Important issues discussed of relevance to Australia include "The Fiduciary Duty of the Crown", "The Legal Basis of Aboriginal Title" (by Professor Brian Slattery); "The Doctrine of Extinguishment" (by Professor Hamer Foster); "Litigating Aboriginal Rights Cases" (by Marvin R V Storrow, litigation lawyer); and contributions on anthropological, constitutional, political and international aspects. Throughout, the plaintiffs' voices are strongly heard, exemplified by the title of the essay by chairman Medig m Cyamk of the Office of the Heredity Chiefs of the Gitksan and Wet'suwet'en people: "It Doesn't Matter What the Judge Said"!!

The volume is organised into eight sections, wherein the historical, legal, human, political and international dimensions of the judgment are examined. An appendix includes excerpts from the judgment; there is a list of contributors and a useful index.

Frank Cassidy's introduction gives Australians an indication of how Delgarnuukw is perceived:

"Delgamuukw v the Queen represents a significant moment in the history of British Columbia. The judgment, the case which led to it, and now the appeal of the judgment compels British Colombians to come face to face with their history, their origins, and their most fundamental social and cultural values. The plaintiffs ... asked the Supreme Court of British Columbia to "set the foundation for a resolution of the impasse which has characterised the history of the last 100 years". ...This is indeed a landmark case. The goal of the selections in this book is to provide the reader with an understanding of what is in dispute and why the dispute is taking place. Most fundamentally, it is British Columbia, its history and its future, which is in question, for Delgarnuukw asks us to re-think British Columbia, to re-visit its origins, and to envision its future. As you read this book, have no doubt about it. The challenge of Delgarnuukw and the responses to this challenge will re-shape the province in the years to come."

At a time when Australia is facing (or refusing to face) similar issues of high policy in its response to Mabo (and doing so, to put it mildly, in a disappointing fashion), these sentiments and the contents of this book represent valuable reading of a comparative and substantive kind.

* PO Box 10, Lantzville, British Columbia,CanadaVOR2HO.

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[1] See Calder v Attorney General of British Columbia (1973) 34 DLR (3d) 145; Geurin v The Queen (1984) 2 SCR 335; 13 DLR (4th) 321; R v Sparrow (1990) 1 SCR 1075; Baker Lale Hamlet v Minister of Indian Affairs (1980) 108 DLR (3d) 513; Ontario (AG) v Bear Island Foundation (1984)15 DLR (4th) 321.

[2] This states in part that "The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed." Sparrow, cited above, was the first opportunity for the Supreme Court of Canada to consider the scope and meaning of s35.

[3] See Milirrpum v Nabalco Ply Ud (1971)17 FLR 141