In 1846 when the British parliament declared its sovereignty over what became the colony of British Columbia, it thought it had accomplished two things: the ownership of the land, effectively extinguishing all other title in the territory; and the establishment of English common law. Indeed, when James Douglas, the son of a Scottish merchant and Indian woman, was appointed the first governor in 1858, he was given extensive powers over land use and dealings with the natives, and mandated to bring order to the colony of men "so wild, so miscellaneous, and perhaps so transitory."

Sir James must be rolling in his grave. On December 11 in what is being viewed as one of the most powerful acts of judicial activism in Canadian history, the Supreme Court of Canada delivered its ruling on a claim by the Gitksan and Wetsuweten tribes to 23,200 square miles of northwestern B.C. While dismissing the Delgamuukw claim on a technicality and ordering a re-trial, the six justices nonetheless dismantled both tenets of sovereignty, ruling that native title had never been extinguished, and that the rule of common law is no longer supreme.

In a move that observers say is almost certain to foment western alienation, and even a B.C. movement toward outright secession, the Supreme Court also legislated that any province with outstanding aboriginal title claims no longer has absolute jurisdiction over lands affected. Specifically, aboriginal title now entails "the right to exclusive use and occupation of the land," including "the right to choose to what uses land be put."

While the province still technically owns the land, it has an obligation not only to consult with the native title holders on usage, but to "co-manage" the resources with them, and pay compensation for any infringements on their title. Critics say the move effectively destroys provincial control over land-use decisions.

While the ruling will hit B.C. hardest, where over 80% of the land base is now under treaty negotiations with 50 different native groups, it also has ramifications for other provinces, where analysts predict that bands will demand a renegotiation of their treaties in line with the new title rights defined by the court (see story, page 10). At the very least, the ruling could slow to a standstill economic development on affected lands, until such time as title claims are resolved.

But according to some legal experts, the ruling's most radical component is its requirement that the courts give equal consideration to aboriginal oral evidence in considering claims. Such testimony must be given "independent weight," exempting it from the usual common-law rules of evidence. Given the contradictory nature of much native oral testimony, the ruling directly hinders the judiciary's ability to scrutinize the evidence before it.

"The Supreme Court's treatment of this [oral evidence] issue is one of the more remarkably disingenuous pieces of legal reasoning ever seen," says B.C. Liberal critic Geoff Plant, previously a member of the legal team that successfully obtained a ruling against native title at the original B.C. Supreme Court Delgamuukw trial in 1990—a team that was sacked by the then-new NDP government before the case went to B.C. Court of Appeal (where the Indians lost as well). "It is fundamental to all societies that some things people say will be more accurate than others," Mr. Plant says. "You can't just treat it all as accurate."

Those unconvinced need look no further than B.C. Chief Justice Allan McEachern's 1990 ruling. After filing their original statement of claim in 1984, the 8,500-member Gitksan and Wetsuweten nations made over 20 alterations to it, over the extent of internal boundaries as a result of disputes among the 200 different family houses. Mr. Justice McEachern agreed to hear the oral evidence anyway, admitting several volumes of unwritten statements on history, legends and laws over 374 days of hearings, much of it presented in aboriginal dialects.

Ultimately, the oral evidence was too contradictory to be of any use, Mr. Justice McEachern concluded. In failing to reach consensus on their internal boundaries, the claimants threw the total claim into dispute. He accordingly dismissed it, finding that title had been extinguished regardless, and that the natives had only limited rights to use part of the territory for traditional ceremonial and sustenance purposes.

Despite the chief justice's unprecedented "progressiveness" in admitting the oral evidence, the Supreme Court of Canada concluded that he had failed sufficiently to exclude it from the usual common-law rules against hearsay. "The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation...if this reasoning were followed the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system," the judges stated in their unanimous decision.

Writing for the majority, Chief Justice Antonio Lamer that despite the subjective nature of aboriginal oral history, "the laws of evidence must be adapted" to place such testimony on "an equal footing with the types of historical evidence that courts are familiar with."

Such a radical departure from the judiciary's traditional function of interpreting and applying previous common law is stunning, says constitutional lawyer Mel Smith of Victoria. He argues that by removing any constraints on oral testimony, beyond an edict to weigh it equally against traditional evidence, the court has entrenched a form of modernist relativism that calls into question its own supremacy—presumably there is no longer any basis to hold that common law is superior to aboriginal legal systems.

Antonio Mills, a professor of First Nations Studies at the University of Northern B.C. in Prince George, responds that most of the natives' conflicting evidence on internal boundaries resulted not from inaccurate accounts of family territories, but from genealogical questions stemming from inter-marriage between families. An expert on Wetsuweten traditions, Prof. Mills says that conventional evidentiary techniques consistently validate oral histories, in the same way that archaeologists have used Homer's Illiad and Odyssey, both based on oral accounts, to locate ancient villages.

Not so, says Phil Eidsvik, director of the Fisheries Survival Coalition of B.C. He cites the 1993 Dick case in B.C. Supreme Court, in which the Campbell River Indian band used oral evidence to prove historic use of sockeye in the region. The crown prosecutor produced a 75-year-old letter, written to federal fisheries officials by one of the band's chiefs, criticizing the department for allotting it sockeye which it had not previously used. In that case written evidence contradicted the oral history. But in cases where no such evidence exists, oral evidence must now be weighted independently. "That 'equal footing' scares the hell out of me," says Mr. Eidsvik. "It just isn't reliable."

The 1994 Royal Commission on Aboriginal Peoples' investigation into the federal government's 1953 relocation of Inuit communities to the High Arctic is another case in point. Mr. Smith notes the move was a voluntary exercise that, by their own written testimony, benefitted the Inuit. Nonetheless, with no documentary evidence, the commission concluded the move had caused irreparable harm, based on the oral testimony of 31 Inuit, many of whom were either children at the time of the move, or born afterwards. Says Mr. Smith: "The Supreme Court has stepped out of the box, and has developed its own pseudo-legal system for considering cases...It is a very dangerous precedent."

Surprisingly, some aboriginals do not dispute the inaccuracy of their oral traditions. On the contrary they claim the right to change their spiritual beliefs and accounts over time. Writing in the journal Oceania, anthropologist Francesca Merlan of Australia documents a 1989 dispute over mining in that country's Northern Territory, in which an aboriginal band claimed the site was the sacred resting place of its ancestor. Using the aboriginals' own oral histories, the developer proved that the site had been designated sacred only within the past 10 years. Ms. Merlan responded by arguing that aboriginal customs have the right to be "dynamic."

The problem, said Mr. Justice McEachern in his ruling, is that the determination of prior occupancy is a strictly historical question, whereas native oral traditions enmesh both history and religion, confounding, in his words, "what is fact and what is belief." As such native oral accounts are even more error-prone than other, strictly "historical" oral accounts.

Such inconsistencies are all the more alarming in view of the Supreme Court's new definition of native title, says Martyn Brown, director of the Citizens' Voice on Native Claims. Under the court's new formula for title, native claimants must satisfy three criteria: that the land was occupied prior to sovereignty; that if present occupation is relied on as proof, there must be a "continuity" between pre-sovereignty and present occupation; and that at sovereignty, the occupation must have been exclusive.

Vancouver lawyer Norman Mullins, a specialist in native taxation issues, regards the third requirement of "exclusive" occupancy as being a significant loss for the claimants. The Gitksan and Wetsuweten are now obliged to prove that their 8,500 members had exclusive occupancy of a territory larger than Prince Edward Island. "It is an absolutely insurmountable standard," Mr. Mullins contends. "This is the most devastating defeat the natives have ever suffered when you consider what they were asking for."

Whereas the natives had originally claimed a right to ownership and self-government on the land, he says, the Supreme Court has upheld the B.C. Court of Appeal's earlier ruling that title does not include a right to either.

It was on this "curable" technicality, as former B.C. Liberal leader Gordon Gibson puts it, that the top court ordered a retrial, maintaining that the case must be reconsidered as a claim for title, not ownership. Mr. Mullins objects to the retrial, arguing the court had enough evidence with which to make a final ruling. He also concedes that the new weighting given to oral history is troubling. Nonetheless, he remains confident that the claimants will lose their retrial.

Mr. Smith says the tests the court has provided for determining whether natives satisfy the three title criteria are vague to the point of near-meaninglessness. In addition to their right to cite oral history as proof of exclusive occupancy, the natives need not provide "conclusive" evidence of pre-sovereignty occupation. "Instead, an aboriginal community may provide evidence of present occupation as proof of pre-sovereignty occupation." Mr. Smith suggests such logic is akin to "I am, therefore I was."

Moreover, despite its requirement for "continuity" between past and present occupation, the court ruled the occupation may be "unbroken," without specifying to what extent. Says Mr. Smith, "Does 'continuity' mean continuous or not? Now it means something less."

If and when title is proven, the ramifications are even more dire, says Mr. Brown. The obligation to "co-manage" resources with the title holders amounts to a new order of regulation. Any tree farm licence, mineral exploration right or grazing lease must be approved by the title holders, and adequate compensation paid. Moreover, because the court has ruled that native title on provincial lands may be surrendered only to the federal Crown, it has also legislated that prior title extinguishments the provincial Crown has made, by converting land fee-simple to private owners, may also require retroactive compensation.

In other words, despite the federal government's claim that private property is not on the bargaining table, compensation may nonetheless required for the 5% of B.C. that is privately owned, and to which natives can prove title—including downtown Vancouver, says author Gibson. He notes there is no provision for grandfathering of past acts, unlike Australia's recently adopted native title legislation (see below).

Indeed, whereas the Australian government is now attempting to introduce an omnibus bill that would legislate a blanket extinguishment of all outstanding title in that country, the Supreme Court has prevented any such recourse in Canada by ruling that native title rights are constitutionally entrenched under Section 35, and therefore cannot be extinguished without aboriginal approval. As Mr. Gibson notes, the court would likely rule such approval would also be necessary for a constitutional amendment removing the section.

The upshot is unprecedented federal incursion into provincial jurisdiction over lands, says Mr. Brown. This was confirmed by a Department of Indian Affairs internal analysis of Delgamuukw, leaked to B.C. Report last week. The memo suggests that "all lands subject to native title" will now be included under federally-administered reserve lands, as defined under Section 91(24) of the constitution. Under this "broad reading" of the ruling, as the memo calls it, the province may not even be relegated to co-managing its own crown land, but might instead lose administrative control over these entirely.

University of Victoria political scientist Terry Morley concurs that the ruling has dreadful ramifications for provincial land use. While the province may still have underlying title to the land, it does not mean much. As the ramifications of that become more evident, Professor Morley suspects it could fuel both western alienation and calls for reform of the judiciary (see right). "The Supreme Court has set judges up as government."

Mr. Brown agrees, speculating that those ramifications will become evident much sooner than the public realizes. "The injunctions will start flying within weeks," he predicts. Despite the fact that claims could take several years to be settled, native bands now have a legal basis to demand consultation for any resource lease coming up for renewal in the interim. And on the weight of native oral histories, judges will be loath to deny the injunctions, says Mr. Brown.

At the very least, B.C. must reconsider its treaty cost-sharing arrangement with the federal government, says Mr. Smith. "In saying title may only be surrendered to the federal government, the court has essentially said that compensation is a federal problem," he argues. He notes that the Terms of Union signed with B.C. in 1871 made responsibility for native lands a federal jurisdiction, rendering the province's cost-sharing arrangement ill-conceived. Indeed, provincial Aboriginal Affairs Minister John Cashore now concedes that the ruling could increase the cost of settling land claims (previously pegged at $10 billion by the opposition).

Moreover, the province must now insist on title surrender as a prerequisite for signing new treaties, says Mr. Gibson. Under the Nisgaa agreement in principle negotiated last year, there is no such provision for title extinguishment, guaranteeing continued uncertainty and threats to economic development in the future. Jerry Lampert, president of the Business Council of B.C. and a member of the Nisgaa treaty advisory committee, says its members have urged the province to begin pressing for extinguishment. "The federal government is making a huge mistake on this issue," Mr. Lampert contends.

Until greater certainty is achieved, B.C.'s economy will continue to suffer, says Ken Sumanik, environmental director for the B.C. Mining Association. A recent Fraser Institute survey found that B.C. is now ranked last in Canada in new mineral exploration. When questioned why, 92% of respondents cited aboriginal issues as the industry's main concern. "The uncertainty that existed before has been compounded," Mr. Sumanik says. "Until the courts clearly resolve who the landlord is, we'll all suffer."

—Dave Cunningham

BC Report is available at your favorite newsstand,
or save up to 43% with a subscription