Peace and Environment News* May-June 1997
|
Peace and Environment News * May-June 1997 |
 Ralph Michel. Photo: David Mills. |
by David Mills
A potentially landmark case involving aboriginal rights will be heard before the Supreme Court of Canada this June.
The "Delgamuukw" land title case is the result of two decades of legal action by the Gitksan tribe of British Columbia to reclaim 30,000 square kilometers of ancestral land. Defending against them is the Province of British Columbia and the Attorney General of Canada, who deny that the Gitksan have titled rights to the territory. Arguing alongside the Gitksan but with different counsel are the neighbouring Wet'suwet'en tribe. Both peoples want full rights over a combined 56,000 kilometers of land in northwestern BC.
The hearings take place on June 16 and 17. Originally scheduled for five days, both plaintiffs and defendants now have only 1 ¾ hours to state their respective cases.
The Gitksan have prepared for this with a terse, well-documented factum whose major theme is the inextinguishable nature of aboriginal rights. This holds that those rights that existed before contact with Europeans exist afterwards and always, despite provincial and national jurisdictions. The factum also states that native land claims must be excepted from European-based legal standards.
"We're in court because we want to change our political and economic circumstances," says Gitksan Traditional Chief Ralph Michel. Michel, in Ottawa to coordinate media activity for the tribe, elaborates: "We're just trying to say we never sold our land, never lost it in any wars. We have never embraced federal-provincial jurisdictions. They've been imposed on us. Our laws, laws older than the government of Canada, have been violated."
The Gitksan are a matrilineal society of 10,000 members whose territory surrounds the BC towns of Smithers and Hazelton. Provincial highways and CN Rail run through it. The Skeena River is a major waterway and historic route for a tribe who, according to scientific and folkloric evidence, inhabited the land 3,500 years ago. The Gitksan were a hunting and trapping people with their own laws, culture and language when they first encountered European trappers in 1823. The following decades brought incursions into their territory by whites, and a smallpox epidemic which killed 30 percent of the tribe in 1862.
Early protests by the Gitksan involved opposition to the actions of miners in their territory in 1872, and an appeal to Prime Minister Wilfred Laurier in 1908, which brought no clear results.
It was in 1977 that the Gitksan and Wet'suwet'en founded a legal base for their current case by presenting Ottawa with a declaration of ownership, jurisdiction and self-government. When negotiations with the federal government did not produce results, the tribe filed for claim in 1984 with the BC Supreme Court, naming a hereditary chief, Delgamuukw, as plaintiff. The trial took place in 1987. Gitksan and Wet'suwet'en elders testified in their ancestral languages, an uncommon event at the time.
The trial was presided over by Chief Justice Alan McEachern, who ignored evidence such as totem poles, crests, geographical place names and oral histories before presenting his ruling in 1991. The ruling incorporated controversial characterizations of pre-contact Gitksan culture as "nasty, brutish and short," where "slavery and starvation was not uncommon (and) wars with neighbouring peoples were common..." McEachern ruled that the tribe had rights to the land, but mainly for "aboriginal sustenance purposes." His remarks were later condemned by the UN Human Rights Commission for their "ethnocentric bias."
A 1993 BC Court of Appeals ruling stated that the government must negotiate with the Gitksan on use of their land, but did not give them full ownership. The Gitksan then began talks with BC and Canada, returning to prosecute "Delgamuukw" when BC walked out of the negotiations, claiming lack of progress. "Delgamuukw" is now the longest-running First Nations land claim case in Canadian history. It is being argued partially as a refutation of McEachern's comments.
"McEachern was incorrect in his findings," states Ralph Michel. "He insulted our people, having decided we weren't 'civilized.' He claimed that law only arrived with the fur trade. That's ridiculous."
Michel feels strongly that the Gitksan are fully capable of governing themselves. They are, he says, a skilled and self-motivating people who will use the land to prosper economically while preserving the environment.
"We want the freedom to govern ourselves according to our laws," he says. "We want to manage our resources, to create our own economy so that we can participate in the Canadian economy."
Michel says that the Gitksan can, and to some extent have, managed such industries as fish processing plants, with inland fisheries and selected harvesting of salmon. They can log, reforest and build roads in a way more compatible with the environment than have the large logging companies operating in their area.
"In Canada and elsewhere, corporations destroy Indian land," he says.
"They take all they can, then they're gone. Neither native nor (local) non-native enjoy the profits. The revenue is spent elsewhere. The Gitksan and Wet'suwet'en will provide good government and will look after the interests of the people."
Michel speculates that a decision in the court case could come in November, and that a victory will be symbolic as well as legal.
"A victory for the Gitksan and Wet'suwet'en is a victory for all First Nations, maybe the world," he says. "Aboriginal rights will be recognized in their broadest meaning. The environment will be a winner because our belief is that we have a symbiotic relationship with all life forms. We're not going to destroy the environment.
"A victory for us is everybody's victory," he concludes. "Canada will be a better place for it."
Anyone who wants further information about the case, or who wants to give their support, can contact Wiiseeks (Ralph Michel) at the Aboriginal Rights Coalition, 235-9956.
David Mills is on the Peace and Environment News editorial committee.
Converted February 9, 2000 - Lg
To follow up on this article, contact the author or the organizations/individuals mentioned; do not contact the Peace and Environment Resource Centre - we cannot provide follow up or contact information. This article is an archival copy of the printed one in the Peace and Environment News (PEN). Viewpoints expressed should not be taken to represent the opinions of the Peace and Environment Resource Centre, the PEN, or our supporters.
