Thirty Years After Delgamuukw
Writing in the Globe and Mail
on January 9, the Honourable Stephen O'Neill, an associate lawyer at
Nahwegahbow Corbiere Genoodmagejig Barristers and Solicitors, formerly
a judge on the Ontario Superior Court of Justice from 1999 to 2015,
addresses the fight for justice for Canada's Indigenous peoples and the
requirement for government to act with honour to recognize Indigenous
rights. His opinion piece is entitled "For the Wet'suwet'en and Gitxsan
peoples, justice has been denied. What else is new?"
To illustrate, he
quotes Beverley McLachlin, then-Chief Justice of the Supreme Court of
Canada, who said in the 2004 decision in Haida Nation v.
British Columbia (Minister of Forests): "Put simply, Canada's
Aboriginal peoples were here when Europeans came, and were never
conquered. [...] Many bands reconciled their claims with the
sovereignty of the Crown through negotiated treaties. Others, notably
in British Columbia, have yet to do so. The potential rights imbedded
in these claims are protected by s. 35 of the Constitution
Act, 1982. The honour of the Crown requires that these rights
be determined, recognized and respected. This, in turn, requires the
Crown, acting honourably, to participate in processes of negotiation.
[... W]hile this process [of reconciling Indigenous claims with Crown
sovereignty] continues, the honour of the Crown may require it to
consult, and where indicated, accommodate Aboriginal interests."
O'Neill goes on to address the current situation and the BC Supreme
Court decision to grant the Coastal GasLink injunction:
"This latest injunction represents a blow to the efforts to oppose the
project in the area, as this order could potentially criminalize those
land protectors who, with the support of the Wet'suwet'en Nation, have
been working for years to uphold customary Wet'suwet'en law; for about
a year, Wet'suwet'en members have blockaded a remote stretch of forest
service road and a bridge using checkpoints on their traditional
territory about 300 kilometres west of Prince George. This latest
injunction would restrain and prevent certain named defendants from the
Wet'suwet'en Nation from continuing to do so, and expanded the reach of
the order to include the entirety of that forest service road.
"But hidden in the decision is a paragraph of telling importance from
the hearing judge about a ruling that is key to understanding this
current contretemps: Delgamuukw v. British Columbia.
'The aboriginal title claims of the Wet'suwet'en remain outstanding and
have not been resolved either by litigation or negotiation, despite the
urging of the Supreme Court of Canada in Delgamuukw. It is
apparent from their affidavit materials and submissions that the
defendants are aware that their title claims remain outstanding.'
"Which brings us to a previous disappointing chapter in
Crown-Indigenous relations in Canada that makes this latest one even
more tragic. Shortly after its release, members of the same
Wet'suwet'en Nation, in conjunction with the Gitxsan, filed a legal
appeal of the 1990 trial decision in Delgamuukw,
which was heard in the same BC Supreme Court. The Delgamuukw case
sought declarations of ownership and jurisdiction (later amended to
aboriginal title) over 58,000 square kilometres of land in British
Columbia; in the case of the Wet'suwet'en Nation, their traditional
unceded territory (yin'tah) consists of 22,000 square kilometres.
"After 318 days of evidence presentation and 56 days of closing
arguments, the trial judge ultimately ruled against the plaintiffs. But
three years later, five judges of the BC Appeals Court unanimously
rejected that ruling, ordering the case back to trial to determine the
nature and scope of the aboriginal rights of the Wet'suwet'en and
Gitxsan peoples. And on further appeal to the Supreme Court of Canada,
the country's highest court ordered a new trial in 1997 because of the
trial judge's treatment of the various kinds of oral histories that
were presented at trial, which were very supportive of and important to
the Wet'suwet'en and Gitxsan peoples' legal position, but were
rejected. Antonio Lamer, the Supreme Court's chief justice at the time,
stated that had the oral history evidence been correctly assessed and
given the legal weight it was entitled to at trial, the trial judge's
findings of fact might well have been different.
"In ordering a new trial, however, the then-Chief Justice wrote these
words, which are often repeated in legal circles: 'By ordering a new
trial, I do not necessarily encourage the parties to proceed to
litigation and to settle their dispute through the courts. As was said
in Sparrow, at p. 1105, s. 35(1) 'provides a solid
constitutional base upon which subsequent negotiations can take place.'
Moreover, the Crown is under a moral, if not a legal, duty to enter
into and conduct those negotiations in good faith.'
"Which now takes us to this place in history. Thirty-six years after
the Wet'suwet'en and Gitxsan first entered the Canadian justice system
in good faith, honouring the processes of the court in pursuit of
affirmations and declarations relating to ownership, jurisdiction,
rights and title with respect to identified lands in British Columbia,
a final trial has not taken place on Delgamuukw,
nor has a settlement and resolution of the outstanding legal issues
been reached. And the injunction, fuelled in part by this decades-long
legal limbo, just shows how unproductive any real attempts at
good-faith negotiations have actually been for anything resembling
reconciliation between the Wet'suwet'en and Gitxsan peoples and the
Crown.
"This is a wrong that is completely unconscionable. It is a wrong that
amounts to a deep injustice. It is proof again of the maxim that
justice delayed is justice denied.
"Is it any wonder then that people, whose backs are against the wall
and who have deep spiritual and cultural connections to their
traditional lands and waters, have asserted customary Wet'suwet'en law
and authority through blockades and other means?
"From the perspective of the named defendants, they were legally
asserting Wet'suwet'en traditional laws and authority in unceded
Wet'suwet'en territory. Further, from the Indigenous legal perspective,
and flowing from Wet'suwet'en traditional governance structures,
Coastal GasLink required the nation's consent and authorization to
enter upon and to construct works in unceded Wet'suwet'en lands. That
consent had not been given through the traditional governance
structures.
"Yet from the
point of view of the judge hearing the injunction, Wet'suwet'en
customary laws could not be recognized. 'There has been no process by
which Wet'suwet'en customary laws have been recognized in this manner.
The aboriginal title claims of the Wet'suwet'en people have yet to be
resolved either by negotiation or litigation. While Wet'suwet'en
customary laws clearly exist on their own independent footing, they are
not recognized as being an effectual part of Canadian law.'
"Denying Indigenous law any effectual meaning as 'law,' and potentially
criminalizing the actions taken under Wet'suwet'en customary law and
authority, will not lead to reconciliation. Indeed, it is the
antithesis to reconciliation, however that word may be interpreted in
law or in practice.
"The injunction ruling also added in part: 'The defendants are posing
significant constitutional questions and asking this court to decide
those issues in the context of the injunction application with little
or no factual matrix. This is not the venue for that analysis and those
are issues that must be determined at trial.' This has been the case --
the question of their rights and title repeatedly bounced around and
shirked for others to decide -- for decades. If not now, then when?
"What was not written in the ruling was that the evidence of aboriginal
title, use, possession and occupation of the identified subject lands
in the Delgamuukw case was strong, compelling and
arguably very convincing, when assessed through the appropriate legal
principles and with the proper weight to be given to the oral-history
evidence provided at the original trial.
"When examined through a larger lens, and with an understanding that
justice has been unconscionably delayed with respect to the Delgamuukw
case, the injunction court's condemnation and disapproval ought not to
have rested only on the shoulders of those people connected to the
Wet'suwet'en Nation and the people supporting them. Rather, and perhaps
far more important, the court's condemnation and disapproval ought to
have been directed toward all those members of the Canadian public who,
at one time or another between 1984 and 2019, have held and possessed
positions of power and authority both inside and outside the Canadian
justice system. They could have affirmed and recognized aboriginal
rights and title. They could have ensured that land-claim cases such as
Delgamuukw (of which there are many
outstanding in this country) are tried, or resolved and settled, within
a reasonable period of time.
"Justice delayed, and therefore justice denied. This is the real story
behind the injunction that has labelled people as obstructing, impeding
and blocking access to unceded Wet'suwet'en territorial lands -- people
who are members of the Wet'suwet'en Nation, the unextinguished laws of
which were found by the injunction-hearing judge to clearly exist on
their own independent footing."
This article was published in
Volume 50 Number 1 - January 25, 2020
Article Link:
Thirty Years After Delgamuukw
Website: www.cpcml.ca
Email: editor@cpcml.ca
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