Natives win on land rights: Top court rules that oral history gives bands constitutional claim in absence of treaties

By Robert Matas, Erin Anderssen, Sean Fine, Friday 12 December 1997

Vancouver and Ottawa and Toronto—Native people have a constitutional right to own their ancestral lands and to use them almost entirely as they wish, the Supreme Court of Canada ruled yesterday.

The decision applies to natives who have not signed away their lands in treaties and so is especially explosive in parts of Atlantic Canada and most of British Columbia.

By ruling that aboriginal title to land has never been extinguished, the Supreme Court casts a thick cloud of uncertainty over the future of British Columbia's logging and mining industries.

In a unanimous decision released yesterday, a six-member panel of the Supreme Court overturned a ruling of a B.C. court that dismissed claims from the Gitxsan and Wet'suwet'en First Nations to ownership of a 58,000-square-kilometre swatch of land in northwest British Columbia.

The Supreme Court concluded that a new trial is necessary. The trial judge erred by not taking into account oral histories of the natives presented to the court to establish their occupation and use of the land, the court found.

Had the trial judge assessed the oral histories correctly, his conclusions on these issues of fact might have been very different, stated Chief Justice Antonio Lamer, who wrote the decision.

However, Chief Justice Lamer also stated that the court was not necessarily encouraging the natives to return to litigation to settle their dispute. Rather, he encouraged them to negotiate a settlement with the federal and provincial governments.

Ultimately it is through negotiated settlements, based on good faith and reinforced by the Court's ruling, that a reconciliation between native societies and the rest of Canada will be achieved, he wrote. Let us face it, we are all here to stay.

Both the federal and provincial governments expressed a willingness yesterday to negotiate a settlement.

Negotiation is the preferred option of the federal government, Indian Affairs Minister Jane Stewart said yesterday. She called the judgment a positive affirmation of Ottawa's approach to land-claims issues. But she said her department will review the technical elements of the decision, including the statements on the use of oral history as evidence and on the extinguishment of rights. We don't need to overhaul our approach in any significant way, she said. But there may be some things that we have to fine-tune.

Likewise, John Cashore, B.C. Minister of Aboriginal Affairs, said the decision was a shot in the arm for treaty negotiations and re-affirmed the province's approach.

But he warned that court decisions during his four years as minister resolved nothing.

B.C. Premier Glen Clark said the province would prefer to negotiate with the bands, although he did not rule out taking the matter back to the courts.

)From the province's perspective, he said he was reserving any final decisions. We have to look at the case, he said. I haven't had a chance to read it. But in general we're loathe to use the courts.

To assist the negotiations, the court, for the first time, spelled out the framework for determining native title. The court also stated that compensation would ordinarily be required when native title is infringed.

It's a complete victory for us, said Vancouver lawyer David Paterson, who was part of the legal team that represented the Gitxsan and Wet'suwet'en bands in their land-claim battle. The Supreme Court essentially adopted the legal arguments put forward by the natives, he said.

Aboriginal title is alive and well and living in the territories of first nations of British Columbia, said Chief Joe Mathias a prominent native spokesman in British Columbia. The decision restores a measure of faith in the rule of law.

Mr. Mathias also said that the decision means natives in British Columbia cannot be ignored when the government issues licences for, for instance, logging or regulates economic development and resource industry.

Aboriginal title must be taken into account when any form of development takes place in B.C. And in treaty talks, it means the Crown cannot ignore our rights to lands and resources and deliver them to others, he said.

Herb George, a spokesman for the Gitxsan, heralded the judgment as an immediate victory, saying we are no longer an invisible people.

He said that the band's first choice now is to negotiate a resolution, but the Gitxsan are not afraid to return to trial. There is no doubt in our minds that we can prove that we have title to that land, and that we have rights of governance as well, Mr. George said.

The Gitxsan and Wet'suwet'en, who claim a territory about five times as large as Prince Edward Island, have been involved in negotiations and legal battles with the federal and provincial governments for almost 20 years. The current court case, which has been estimated to cost more than $20-million, began in 1984.

Land claims by B.C. natives are significantly different than disputes in other parts of Canada because most of the province is not subject to any treaties. The provincial and federal governments are currently involved in treaty negotiations with representatives of about 75 per cent of the province's 102,000 Indians.

Brian Slattery, who teaches constitutional law at Osgoode Hall Law School in Toronto, said the Supreme Court is trying to create a level playing field here for the parties, so that aboriginal people are not going into the conference room empty-handed, where the other side goes in and says, 'Aboriginal title, what is that? It's not worth very much.'

The court said that the Constitution protects native land title and no province may extinguish that constitutional property right.

The native right to title means that their lands are inalienable -- they cannot be sold, except to the Crown; they are communally owned; natives have the exclusive right to use the lands; and the land can be used for all modern purposes. In practical terms, this means that natives have the right to set up casinos, for example, or mining operations, some legal scholars now say.

The only limit is that natives may not use their lands for purposes directly opposed to the original use -- they may not pave over a religious area to create a parking lot, Chief Justice Lamer said.

Prof. Slattery said the decision means natives have a right to full-blooded title. It has some differences from ordinary title but nevertheless it's something that we have to take seriously. This is a genuine property right in every sense of the word.

The land claimed by the Gitxsan and Wet'suwet'en stretches along the Skeena, Buckley and Babine watersheds about 700 kilometres north of Vancouver. It is rich in trees and minerals.

Native leaders said yesterday that the Supreme Court decision requires the federal and provincial governments to acknowledge that natives who establish a land claim must be involved in the management of the natural resources.