Aboriginal Law Bulletin
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by Professor Brad Morse
The British Columbia (BC) Court of Appeal at long last released their judgment on 25 June, 1993 in the appeal of the landmark decision of Chief Justice McEachern for the BC Supreme Court that had been released over two years earlier in April 1991 (See AboriginalLB 53/7).
The trial decision set a new record in Canadian legal history for being the longest civil trial in the country with the longest judgment ever produced. The argument of the appeal itself required 34 days.
The Gitksan and Wet'suwet'en are two distinct nations totalling approximately 7000 people that have lived alongside each other in northcentral BC for thousands of years and who have developed a close and mutually supportive relationship. Frustrated with a thoroughly inadequate land claims policy of the federal government and the province's refusal to negotiate at all, the Gitksan and Wet'suwet'en decided in the early 1980s that they had little choice but to go to court to seek to protect their rights and their land in the face of large-scale logging activities that were destroying much of their traditional territory. They initiated a civil action in which they basically sought a declaration confirming that they were the rightful owners of their traditional territory (58 000 sq. kms) and had full jurisdiction to manage their land and its resources as they thought best. They argued that the 51 Heads of their Houses (which are their hereditary leaders that form a part of their clan system) had never surrendered either their title to the land, which they had possessed since time immemorial on behalf of their people, or their right to govern the land through their traditional system of government.
Chief Justice McEachern wrote a very lengthy judgment in which he concluded that aboriginal peoples could not be regarded as owners in a western sense but at most had aboriginal title to use the land as their ancestors had. He made numerous disparaging remarks about the primitive nature of the Gitksan and Wet'suwet'en societies before contact with Europeans and his disbelief as to the relevance of most of the testimony of aboriginal witnesses. He concluded that whatever limited rights through aboriginal title the Gitksan and Wet'suwet'en people had once possessed were extinguished by the Crown's declaration of sovereignty over the territory coupled with colonial legislation demonstrating a desire to open land up for white settlement. He likewise rejected all claims to continuing jurisdiction over the land and its resources by the Plaintiffs but did recognise that the provincial government, by virtue of promises made over the years, owed a fiduciary obligation to the Gitksan and Wet'suwet'en people to allow them to continue to use Crown land until it was needed for another purpose. In the trial judge's view, the losses suffered by the Plaintiffs should be redressed through political means rather than through Canadian courts.
The change in the party in power in the provincial government (from a party akin to the National Party to one analogous to the ALP) brought about a fundamental switch in the provincial argument in this case on appeal. The province expressly rejected the trial judge's conclusion that there had been a blanket extinguishment of all aboriginal title and aboriginal rights by 13 colonial instruments such that the Plaintiffs did have aboriginal rights in at least part of the territory claimed. The province still supported the trial judge's conclusions that Gitksan and Wet'suwet'en peoples had no ownership or proprietary rights in the territory; that they have no general right of self-government or jurisdiction, although some rights or freedoms of self-government may remain but subject to federal and provincial laws; and that some aboriginal rights may have been extinguished or impaired by the province after confederation exercising its rights to lands and resources under s109 of the Constitution Act 1867. Both the province and the Plaintiffs jointly submitted to the Court only several days before the appeal was heard that a range of matters should not be decided but adjourned for two years for the parties to seek to resolve through negotiations.
At the suggestion of the province, the court appointed three of the lawyers who had argued the case at trial for the province (ie for the former Socred government) as amici curiae, or friends of the court, to make the arguments in favour of blanket extinguishment. A long list of groups intervened in favour of one of the three positions, while the federal government remained a full party even though there was no appeal from the trial decision which dismissed all claims against the government of Canada. The federal government apparently kept a low profile for itself in the appeal but argued against blanket extinguishment and against the capacity of a province to extinguish aboriginal title or rights after confederation as an unwarranted invasion of its authority under s91(24) of the Constitution Act 1867.
The Court of Appeal, by a 3-2 majority, upheld part of the appeal for the Plaintiffs while rejecting most of the claims they had brought. The two dissenting judges wrote separate reasons. One of them (Hutcheon JA) would have recognized "a right of self-regulation exercisable through their own institutions to preserve and enhance their social, political, cultural, linguistic and spiritual identity" (p268), awarded them costs and a new trial postponed for two years to identify the precise lands and the scope of the rights involved as well as the damage issue, while the other dissenting justice (Lambert JA) would have gone even further. Adding to the difficulty in determining what this case is legal authority for, at least in BC, is the fact that the majority is comprised of two judgments (ie., MacFarlane JA writing for himself and Taggert JA along with Wallace JA writing for himself). The water is further muddied by the fact that all four written judgments occasionally refer to the fact that they agree with the reasons or conclusions of another colleague on this appeal.
All five judges applied a much stricter test than the trial judge to the issue of extinguishment. The difference turned upon how one approaches the "clear and plain intention" test regarding extinguishment of aboriginal title. None accepted the trial judge's view that the mere presence of colonial laws intended to open up the whole colony for non-Indian settlement was sufficient to extinguish aboriginal title. Instead, all the judges seemed to conclude that extinguishment could only occur unilaterally by the Crown if (a) legislation was used; (b) the branch of the Crown enacting the law had the constitutional authority to do so; and (c) the legislation shows a clear and plain intent to extinguish via (i) express language or (ii) language that causes the necessary implication that extinguishment was intended because that is the only possible way that legislation can be interpreted (or put another way, it is impossible to see aboriginal title or aboriginal rights as continuing to co-exist in the face of this legislation even in a limited, impaired or regulated form and that the legislation did not permit the possible resolution of any conflicts through treaties or otherwise). The Court therefore rejected arguments based upon adverse possession and manifest intention as a result of Crown declarations that it owned all the land or it had the power to grant good title to anyone it wished.
A possible claim for damages for Crown actions in effectively disposing of lands and resources in a way that infringed aboriginal title or rights was expressly left open for another day as were questions as to whether or not specific Crown approved uses of the land by third parties had impaired, suspended or terminated aboriginal rights.
The Court was unanimous in accepting that aboriginal rights did exist to some degree for the Plaintiffs and that they were now protected by s35 of the Constitution Act 1982.
All judges agreed that after confederation (which in BC's case was 1871 when the colony joined Canada) only the federal government could legislatively extinguish aboriginal title or aboriginal rights. This is not to say, however, that provincial grants of fee simple title to third parties, at least before 1982, can be successfully challenged when the province has made the grants under its ordinary and valid legislation dealing with provincially owned Crown lands and resources, as such an effect on aboriginal title or aboriginal rights was indicated as merely being only incidental. The Court declared that provinces since confederation in 1867 cannot extinguish native title on their own (although the federal government could unilaterally and could perhaps incorporate provincial laws through s88 of the federal Indian Act to accomplish extinguishment of title) even through land grants. As a result, a complex situation may arise of competing interests between third parties with valid interests in land and aboriginal peoples still with aboriginal title or aboriginal rights over those same lands which the Plaintiffs proposed, and the judges seemed to endorse, should be resolved through a claim in damages rather than through an action in trespass against the third party holders of fee simple title.
The Court also gave a broad interpretation to s91(24) of the Constitution Act 1867, which allocates legislative authority regarding 'Indians and Lands reserved for Indians' to the Parliament of Canada, as not limited to Indian reserves recognised under the Indian Act but covering all aboriginal title lands and aboriginal rights so as to give no real room to provinces to extinguish these interests through the exercise of provincial powers. Likewise, s91(24) was not seen as limited to dealing with the status and capacity of 'Indians' but instead covering other matters integral to their existence as distinctive societies.
The Court of Appeal gave some recognition to traditional customs and practices as being part of common law so as to be protected and enforceable as such, although their scope is left as being rather narrow. In this regard, the judges were particularly influenced by the High Court's decision in Mabo, and especially by the judgment of Mr Justice Brennan.
There are suggestions by Justices Wallace and Lambert in their separate and divergent reasons that the Metis may be subject to a different and less stringent test for proving their aboriginal title or aboriginal rights as they are a unique and post-contact people. In their view, requiring proof through the same test for Indian nations (which focusses upon occupation as an organized society notionally since time immemorial but looking in particular at the situation in place at the time Crown sovereignty is asserted and the common law arrives) would be impossible to meet so that such a standard would render their inclusion in s35 as aboriginal peoples with presumed aboriginal and treaty rights a mockery. It is likely what is meant by this is that the test would be largely the same as set out in Baker Lake (ie., proof of possessing an organised society that was in occupation of specific territory exclusively or shared with another aboriginal group), but that the critical date by which this state of affairs must be proven may be later than the time when sovereignty was asserted by the Crown.
None of the judges accepted the Plaintiffs' argument that aboriginal consent before extinguishment was essential to extinguish aboriginal title as all would allow unilateral extinguishment by the Crown through appropriate legislation.
The majority rejected any element of aboriginal sovereignty or self-government on the basis that the Constitution Act 1867 effectively divided all possible sovereign or law-making power between the federal and provincial governments. In the opinion of the majority, there simply was no room for self-government to remain after the creation of Canada - and it might have even been lost as soon as the Crown first asserted its sovereignty over the territory in question effectively. It did not matter that there was virtually no actual penetration into the Gitksan and Wet'suwet'en territory until well after British Columbia became a province in 1871, as the majority felt that Dicey and his views of parliamentary supremacy were alive and well. There was, therefore, no right for the Plaintiffs to govern themselves or their territory let alone non-Aboriginals within their traditional lands except as delegated by the federal government. Since such rights of selfgovernment disappeared no later than 1871, they could not be 'existing aboriginal rights' within s35. Even the minority that dissented on this point would solely have recognized the authority to be self-regulating within a limited but undefined sphere that would not encompass any non-aboriginals in their territory.
All of the judges on appeal rejected the Plaintiffs' claim to ownership or a proprietary interest in the land and its resources. Any claim to be able to impose limits on provincial law by the hereditary chiefs of the Gitksan and Wet'suwet'en Nations acting on their own was also rejected. The only accepted sources for a limitation on provincial power were s35 and s91(24) as well as any federal laws enacted pursuant to the latter.
Any limit on a provincial power to dispose of Crown lands and resources before 1982 was rejected unless it was an effort solely designed to extinguish aboriginal title or aboriginal rights, in which case it was an unconstitutional invasion of federal power under s9l(24). The province was, however, competent to deal with its own assets for proper purposes falling within its legislative competence.
The formal claim to damages for violation of rights to date was rejected (3-2) since it was sought solely in relation to the ownership issue which had been lost. No costs were awarded to the Plaintiffs either even though they were successful in obtaining a reversal on the vital issue of continuing aboriginal title. This latter conclusion may have been influenced by the fact that it was well known that the Plaintiffs had received a large financial contribution toward the costs of the litigation from the Government of Canada. Somewhat surprisingly, the joint request from the province and the Plaintiffs for a two year adjournment on certain issues while the Court of Appeal retained supervisory jurisdiction was rejected (5-0, although the 2 dissenting judges would have sent this matter back to the lower court).
The basic concept of the majority regarding aboriginal title or aboriginal rights is that it is limited to the traditional territory in which longstanding occupation and use before the arrivall of the Crown has been recognized by the common law. Further, they would limit these interests to activities that are 'integral to a distinctive culture of an aboriginal society in existence at the date of the assertion of sovereignty'. These characteristics must be proven in each case and may vary from group to group. While the majority is willing to accept that the manner in which these activities may be undertaken can be modernized over time, no 'new' or post-Crown sovereignty activities can be regarded as aboriginal rights. Wallace JA is quite precise in suggesting that there can be no mining rights, commercial trapping, etc., as these are post-contact activities that cannot meet the test. In addition to proving a sufficient degree of antiquity to the activity to bring it within the realm of potential aboriginal rights, there will be a need to prove that it was also 'integral to a distinctive culture' at that time as opposed to a sporadic or minor activity. It is this last point that excludes commercial activities for cash in the view of the majority. This aspect of the judgment naturally has a very severe effect in narrowing the scope of aboriginal title and may thereby reduce the value of land claim settlements while minimizing the degree to which aboriginal groups may restrict third party natural resource activity on or under their traditional lands until a settlement has been reached.
All the judges made it clear that in their opinion interested third parties should be involved, or may even have a formal right to be so included, in any future litigation in which their alleged private property interests were being affected in some way. This judicial view leaves the door wide open for resource companies, commercial and sports fishing and hunting groups, the tourist industry or any other corporations, local municipalities or individuals to come forward to demand participation in any future litigation intended to determine the precise nature of aboriginal title or aboriginal rights in a specific place.
Likewise, the Court left the door open on the issue of whether or not third party interests in land (eg., logging, mining, rights-of-way, leases, fee simple title, etc) could extinguish or legitimately impair aboriginal title or aboriginal rights. Although clearly aware of the High Court's comments in Mabo on this point, the Court of Appeal consciously chose not to address the matter as it was not essential for them in order to render judgment.
Four of the five judges rejected the application of the Royal Proclamation of 1763 to BC. This Proclamation had set out the British policy of recognizing 'Indian Nations or tribes' as being the rightful possessors of the soil and outlining the rules of treaty negotiations. These judges would limit the impact of the Proclamation only to those Indians with whom the Crown had relations in 1763, which was restricted geographically to eastern and central Canada. The majority (3-2) also held that the Proclamation was not part of the common law nor reflected the prevailing British policy so as to have status as part of the common law.
Even aboriginal practices that are post-contact but pre-British assertion of sovereignty, which the Court held in the case of BC to be 1846, could not be included within aboriginal rights as they were viewed as not truly being 'aboriginal' and not of a sufficiently longstanding nature by the date the Crown did assert sovereignty (eg., evidence of commercial trapping for 40 years with the Hudson's Bay Company by 1846 was not good enough).
The Court made almost no reference to the fiduciary duty that the trial judge imposed upon the province on the basis that there was no appeal from this point and no argument on it. All five judges felt there was no necessity to address this issue, particularly since they were upholding some level of aboriginal rights anyway which granted a more extensive interest in the territory than the trial judge's very narrow use of the fiduciary doctrine provided.
The actual outcome framed by the majority was to recognize 'unextinguished non-exclusive aboriginal rights other than a right of ownership or a property right' in the area set out by the trial judge (which is much smaller than the area claimed by the Plaintiffs) unless the parties agree to some other boundaries. The scope, content and consequences of such rights to use and occupation are left to a future trial if the parties are unable to reach agreement through negotiations.
This case has received widespread publicity through the media and is extremely well-known not only in BC but across Canada by aboriginal people, all senior governments and the legal community. It has also attracted the interest of the wider public, although with relatively little blatant opposition. As a result, the case takes on far more importance than it otherwise would as a provincial court of appeal decision. The Ontario officials preparing briefing notes for a Provincial Ministers/Aboriginal Leaders meeting in Inuvik, NWT in July were clearly heavily influenced in their thinking by this decision and in a negative way. One should expect that lawyers representing federal and provincial governments, as well as those acting on behalf of the resource industry, will regularly cite this decision for the proposition that self-government is not a right recognized by the Canadian Constitution as it currently stands and that aboriginal title does not include ownership of resources that were not historically used to a significant degree.
As a result, it defines aboriginal title and aboriginal rights so narrowly that there is little room for these concepts to grow to encompass post-contact activities so essential for the economic self-sufficiency, if not survival, of aboriginal peoples, thereby creating a scenario in which the only way to get access to those natural resources or economic opportunities is to trade away aboriginal title over large blocks of land.
On the plus side, there is no suggestion whatsoever that aboriginal title or rights are the exclusive property of federally recognized Indian bands or even of status Indians. The Indian Act is only turned to by some of the judges for a consideration of whether it might have provided the vehicle for the extinguishment of aboriginal title or rights after 1951 through s88. This, plus the hints that the Metis might have an easier test to meet in proving their rights, are important and positive components to advance the interests of all aboriginal peoples freed from federal regulation. There are also some very interesting comments in the dissent by Lambert JA about how some aboriginal rights might belong more to the individual than the collective.
Despite some positive elements, there is rather little in this decision for aboriginal peoples who live outside their traditional territories or who have been dispossessed on their original lands. Even the so-called 'good news' identified earlier is all tied to traditional territory and the exercise of rights within that traditional territory. There is virtually nothing here for urban or rural people outside their home region except the recognition that they can go home and practise traditional activities through old or new methods largely free from federal or provincial restraints but not subject to any enforceable community laws or controls unless they were delegated by Parliament.
On the other hand, the Court of Appeal has decisively reversed the trial judge, who is after all the Chief Justice of BC, in his conclusion that aboriginal title had been extinguished by the colonial government merely through the passage of general Crown land legislation evincing the intent to convey real property interests to settlers. The reasoning of the majority in Mabo was particularly influential in this regard.
The Delgamuukw decision is relevant to Australia not only because it is the first court in North America to render a judgment in which Mabo is discussed (although the High Court's decision had been cited on several previous occasions to Canadian courts it had not figured in their reasons) and in detail at that. It is also significant for the way in which the Court of Appeal chose to limit the extinguishing effect of third party interests to freeholds rather than the far broader approach of the High Court. Even where such extinguishment occurred, the Court of Appeal implied that compensation may be necessary to the aboriginal group whose interest has been eliminated. Due to the differing constitutional provisions between the two countries, it seems unlikely that the Court of Appeal's limitations on provincial power would apply to Australian states.
One would naturally expect that the Delgamuukw decision would be examined with great care in Australia. Several of the judgments quote quite extensively from Mabo and with the greatest of respect for the Australian High Court. This may indicate the beginning of a more extensive and more mutual interplay of the decisions of both countries' courts on Aboriginal matters. Hopefully, this will lead to a cross-fertilization that benefits the indigenous peoples in both nations rather than a reduction to the lowest common denominator.
As at the time of writing, the Plaintiffs have not yet decided whether to appeal as the deadline for such a decision, unless an extension is granted by the Supreme Court of Canada, is not until October 25. The Province has reiterated that it is committed to negotiating a land claim settlement and to address the issue of self-government within those negotiations. The Plaintiffs have accepted from the outset that negotiations would be inevitable to some degree such that some negotiations of a preliminary nature are already underway and are now aided by the recently created tripartite BC Treaty Commission. Regardless of whether an appeal is launched, it is clear that the Delgamuukw decision will have a major effect on the Canadian legal and political scene for years to come.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/44.html