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Delgamuukw decision: its effects United Nations CERD comments on TFN Treaty vote B.C.’s Nisga’a treaty hits 10 year anniversary while other deals in limbo Governments negotiate as NW ON First Nation maintains highway toll
By Greg J. Edwards Gitxsan. Wet’suwet’en. Delgamuukw. They’re repeated so often in reports about land claims that they’ve become buzzwords – used, misused, understood, misunderstood. The Gitxsan and Wet’suwet’en nations went to the courts to claim jurisdiction over an area larger than Nova Scotia – 133 hereditary territories, or 58.000 square kilometres, in northwestern B.C. Proceedings began in 1984, wended their way through the B.C. courts and ended up before the Supreme Court of Canada where it is registered as Delgamuukw v. British Columbia: [1997] 3 S.C.R. 1010: “Delgamuukw, also known as Earl Muldoe, suing on his own behalf and on behalf of all the members of the Houses of Delgamuukw and Haaxw (and others) v. Her Majesty The Queen in Right of the Province of British Columbia and The Attorney General of Canada.” In Delgamuukw, the Court declined the land claim, explaining that another trial should be held to settle it. It also refused to deal with the claim to jurisdiction, which it saw as self-government. But it gave more importance to oral history; it defined Aboriginal title; it explained the steps to be taken to prove title; it explained the extent of federal authority over it; and it addressed constitutional protection and infringement of title. Larry Chartrand, a U of Ottawa law professor, calls Delgamuukw “a give-and-take decision.” He recognizes that the Court “affirmed” that oral history can be relied on as evidence, and he likes the Court’s definition of Aboriginal title as “the right to the land itself”, “which would include the resources on the land as well as the minerals, oil and gas”; however, he laments the restrictions the Court put on the use of the resources and he describes the Court’s decision on infringement as a “drawback” because it allows “the Crown” to “justify interference with Aboriginal title just as it can interfere with an Aboriginal right to hunt moose, so if the Crown has a strong enough case to justify interference… it can, in a sense, invalidate Aboriginal title; so [Delgamuukw] was a give-and-take decision: on one hand there are some good aspects about it that protect Aboriginal interests, and on the other, there’re some aspects that took them away.” However, the Court limited infringement somewhat by requiring government to consult and pay fair compensation, bars to upsetting title. Besides allowing for interference with title, professor Chartrand, points out that Delgamuukw put a fence around Aboriginal exploitation of resources like mineral, oil and gas by stipulating that land be used in a way that “maintains it for future generations” so that, for instance, “you cannot develop an area used traditionally for hunting.” Chief Justice Antonio Lamer who’d written majority decisions on hunting and fishing rights implicated in the Delgamuukw case, is credited, or blamed, for this restriction on title. His previous majority decisions on Aboriginal rights had restricted hunting and fishing to what they were at the time of first contact with Europeans. Professor Chartrand says that Chief Justice Lamer simply “reinforced” his opinion on rights “by applying them to the land as opposed to the resources.” But, Chartrand points out, the definition of title isn’t the hurdle that proving rights in court is: “few bands have actually proved their rights in court, so the government assumes that, until they do, it owns the land and it can issue the resource development permits to non-Aboriginal companies etc. It’s status quo, so that’s why the Haida Gwaii case is very important.” “A fairly recent decision,” the Haida Gwaii “created an obligation on government to consult First Nations if they want to do anything that might interfere with their asserted Aboriginal rights and not just proven Aboriginal rights.” But “it’s still fairly new and the courts are still working out the scope and details of it but it has already resulted in a significant change in government policy.” Can the Haida Gwaii call for consultation be seen as a consequence of Delgamuukw? Chartrand sees it as a direct result of Haida Gwaii, but he points out that Haida Gwaii did refer to Delgamuukw and “its requirement for consultation to justify an interference by Crown. But Haida Gwaii went the extra step by applying consultation to asserted claims even if they haven’t been proven.” Natives leaders have tried to get the courts to judge their rights and title together, but, Chartrand explains, “the legal test requires a separate analysis,” so rights and title are examined separately, not simultaneously: “And,” he adds, “in my opinion, the courts have used this distinction to the disadvantage of Aboriginal people because they can deny an Aboriginal land title claim but yet say [a First Nation] can hunt or fish, instead of granting the full title… Judges are very leery of granting that kind of broad all-encompassing right, which would limit what the government can do, so they’re more willing to grant the lesser right to hunt or fish or use a resource.” But Native leaders have persisted in trying to get the two rights considered together. “Yes, they often do that because we can often use the same evidence to assert both rights and title. Title requires evidence of occupation and use. If they’re trying to establish occupation and use through the fact that they hunted and fished the territory, establishing that evidence would” go “to title” and “to establishing the right to hunt and fish… They assert the land rights, and, as a fallback, they can probably, at least, get the Aboriginal right to hunt or fish or whatever else is claimed.” He doesn’t see the courts “entertaining” title and rights together any time soon: “The Van der Peet and Delgamuukw precedents are relatively recent and there would have to be very good arguments to justify overturning those decisions.” So what have been the effects of the Delgamuukw decision? It “reinforced the validity of title claims to land” and prodded government to continue with land claim agreements: “Government knows that if they don’t settle a claim, the community can always go to court and make a land claim. But that’s very difficult to do; there are a lot of barriers to litigating land claims, so there are motivating factors on both sides to resolve disputes in negotiation. And that seems to be the outcome of Delgamuukw: it’s not so much a legal outcome as it is an outcome to promote negotiated settlements.” The Court declined to consider Delgamuukw’s self-government claim, but Aboriginal title is communal, so isn’t self-government implied? “Yes,” Chartrand says, “it does imply it to a certain degree because the community has to be able to decide what to do with the property… so indirectly you could say that Delgamuukw did affirm self-government in the context of land-use decisions but it probably cannot go any further.” According to Chartrand, fee-simple takeover of lands is “the normal outcome of negotiated settlements. The band will agree to extinguish its Aboriginal title to a territory in exchange for sections of fee-simple interest in land owned collectively, so, once they have that fee-simple interest in lands, they can develop without the restrictions that were imposed in the Delgamuukw case. In fact, the Delgamuukw case says that’s the only way” to get the freedom to develop and exploit Aboriginal lands in a modern fashion. The Gitxsan and Wet’suwet’en didn’t opt for a retrial. They chose negotiations, which have been going “painfully slow.” “And,” Chartrand adds, “there has been litigation from over-lapping claims, so it has become quite a bit of a mess. I don’t think there’s much light at the end of the tunnel right now. I wouldn’t be surprised if it does result in another claim, but the cost was enormous in the first one…” United Nations CERD comments on TFN Treaty vote By Greg J. Edwards Tsawwassen resident Bertha Williams got the UN Committee on Elimination of Racial Discrimination (CERD) to “reiterate” its doubt about payments made to Tsawwassens after they’d approved their treaty 130 to 57 July 25, 2007. The treaty came into effect April 3, 2009. Williams has seen the $15,000 paid to each Elder and the $1,000 paid to all other Tsawwassen members upon a yes vote on the treaty as inducements or bribes. CERD’s doubt was expressed politely as part of a paragraph in a March 12, 2010 letter to the Canadian ambassador for Switzerland: “With regard to the Tsawwassen Nation, the Committee reiterates its concern expressed in its communication of March 2009 that the Tsawwassen Final Agreement may have been subject to process that did not meet standards for fair elections, in particular in light of allegations of financial inducements and other non-transparent processes used to influence election outcomes. The Committee recommends that increased efforts be taken to ensure fair and transparent voting procedures and monitoring of a future vote on an agreement.” Tsawwassen chief, Kim Baird, tells the Native Journal by email that she and her council “were not in a position to submit to UN CERD on this matter, which is unfortunate.” Baird adds that “TFN members’ support of all treaty-related votes, including ratification, law approvals, and land use plans, was consistently around 70 per cent” even though the ratification vote was the only poll that involved direct cash awards to members. What’s more, she adds, those who favored the treaty told a Mustel poll that they did so because, one, “they thought that the deal was the best that could be negotiated,” and, two, “that it provided for self-government.” In an earlier Native Journal story, Chief Baird said “the $1,000 paid to enrolled members” were “immediate Treaty” benefits that served a second purpose: “to limit people’s expectations that the entire settlement would be split up amongst members, [which was] a concern Ms. Williams herself raised in earlier meetings, stating that she was worried that people would vote in favour of the Treaty because they thought they would be getting a substantive amount of money.” The $15,000 was paid to each Elder out of concern that they might not live long enough to enjoy benefits of the treaty. In any event, the Tsawwassens are implementing their “Final Agreement” in spite of UN CERD’s concerns, which have no effect on the treaty’s passage. B.C.’s Nisga’a treaty hits 10 year anniversary while other deals in limbo By Dirk Meissner Eighty-nine children nicknamed Treaty Babies sang “O Canada” May 11th to mark the 10th anniversary of the historic Nisga’a treaty, hailed as British Columbia’s first modern-day Aboriginal treaty. The school-age children, who sang the national anthem in their Nisga’a language, were born after the effective date of the treaty a decade ago. Hundreds of people, including politicians, gathered in the tiny Nisga’a community of New Aiyansh – located about 1,500 kilometres northwest of Vancouver – to celebrate the treaty’s 10th anniversary. It’s unspoken, but Aboriginals, non-Aboriginals and politicians agree the Nisga’a treaty represents a defining moment and achievement for Aboriginal relations in Canada. It took more than 100 years of on-again, off-again negotiations to reach a deal that became real on May 11th, 2000. The treaty set the stage for the promise of more, as the majority of British Columbia’s almost 200 Aboriginal nations never signed one, but there’s only been two treaties in British Columbia since the Nisga’a deal. The suburban Vancouver Tsawwassen First Nation and Vancouver Island’s Maa-nulth First Nations have ratified treaties, with at least three others close to voting on proposed deals. George Abbott, B.C.’s Aboriginal relations and reconciliation minister, admits there have been too few agreements reached since the Nisga’a agreement. “It’s true, looking back 10 years I’m sure there were hopes for more treaties than we have achieved to date,” he said. “The treaty process has been less successful than we’d hoped.” Abbott, who was in New Aiyansh to celebrate with the Nisga’a, said the B.C. government has been seeking alternate agreements to full treaties that secure the land base and help build economies. Chief Sophie Pierre said the B.C. Treaty Commission, which oversees the federal-provincial-Aboriginal treaty negotiation process, is starting to see some progress in negotiating positions after the federal government announced recently it will allow treaty talks to go ahead without settling the contentious fish issue. Rights to fish – especially salmon – are controlled by the federal government and have stalled many B.C. settlements. Pierre, the chief spokeswoman for the treaty commission, said the Nisga’a treaty represents a turning point and many still look to the Nisga’a for treaty breakthroughs in British Columbia. Ten years ago, the Nisga’a gave up future land claims in exchange for their treaty, which gave them about 2,000 square kilometres of land and $190 million in cash. The Nisga’a received self-government powers akin to a municipal government, resource rights and the right to retrieve their cultural artifacts from museums. They gave up their tax-exempt status and the Criminal Code of Canada applies on Nisga’a lands. Nisga’a Nation president Mitchell Stevens said he couldn’t provide much advice for the treaty process other than noting that the Nisga’a have always governed themselves and always believed there is a better way to achieve success than through civil disobedience and violence. He said in the past decade, the Nisga’a have set up their own parliament, completed a highway system, connected its villages to the Internet, gained control of timber rights from the province, passed legislation that gives Nisga’a members individual land rights and started work on a museum to house the art exhibits they took back from world museums. “We’re a work in progress,” said Mitchell. “As a nation we’re recognized as being on the cutting edge of everything that we do.” Governments negotiate as NW ON First Nation maintains highway toll The provincial and federal governments want to talk with Couchiching First Nation band leaders about long-standing grievances. Government representatives were trying to set up meetings at the end of May to discuss the band’s concerns over contaminated land and a Highway 11 land claim. Successful negotiations could close a toll booth that was set up by the band near the Noden Causeway May 21st. |
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