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The Supreme Court in the Musqueam Case, recognized that Indian Title pre-exists any other legal title, including any legal title created by the Crown. The same case, also confirmed that the Crown in Right of Canada does have a "Fiduciary Trust" responsibility to Indian Nations.
At the present time there are two other cases in the Courts and they are being based on Aboriginal Title.
The First Case involves the Temagami Band of Indians and their Chief, Gary Potts. In the Courts of Ontario the Bands lost a claim to 6,400 square kilometers in the northeast corner of that province.
The Second Case involves the Indian people from the West Coast, in British Columbia, and their claim impacts on Mears Island. The Indian people won in court, and now the Province of British Columbia is appealing.
Following the Assembly of First Nations' conference in Vancouver, B.C., these two articles appeared in The Sun, which is a paper published in Vancouver, B.C.
One of the major problems is that in each case the First Nations affected are attempting to assert a claim to the Lands and Resources, against the
Governments. In each case they attempt to make the claim based on the colonial rules, that are designed to extinguish Indian Title. The courts do not have the jurisdiction to address land rights, all the courts can do is address compensation.
Aboriginal title is often posited as if it were self-evident: the natives were here first, therefore they own the province "lock, stock, and barrel," as the chief of the Nishga band once put it.
But in practice a claim of aboriginal title leads into a legal labyrinth, from which only the most intrepid pathfinders can emerge. One such journey was mapped out recently in the Ontario Supreme Court, when a native band lost a claim to 6,400 square kilometres in the northeast corner of that province.
The B.C. government cites the Ontario case as evidence that native land claims can be successfully challenged in court. Quite likely the government will use similar arguments in the Meares Island land claim, which comes up in B.C. Supreme Court in November.
It will be up to the courts to decide whether any parts of the Ontario judgment apply to B.C. But the case is relevant in a general way because it shows the complex questions a court has to deal with as it hacks through the thickets of meaning that surround the term aboriginal title.
The Ontario action, which pitted the provincial attorney-general against the Temagami band of Indians and their chief Gary Potts, was massive: a decade in the making, it took two years to drag the proceedings through the courts, consumed almost 120 days of hearings, and involved 3,000 exhibits.
Mr. Justice D. R. Steele noted that the natives, funded by the federal government, "seemed to have had unlimited research resources and advanced even the most marginally relevant evidence, to the extent that the swamped the court with material." That may become the pattern for the Meares case too.
Another way that the Potts case adumbrated what will happen in B.C. is the way it attracted political activists, self-styled experts and well- meaning hangers-on. At one point the judge complained: "I believe that small, dedicated, and well-meaning group of white people, in order t meet the aspirations of the current Indian defendants, has pieced together a history from written documents, archaeology, and analogy to other bands... [which] affects the weight to be given to the evidence of non-Indian witnesses. "
The most significant signposts provided by the Ontario judge were the preconditions he set for proving claim. First, natives must establish which rights are legitimately involved. Then they must show that they are legitimate descendants of a group that had those rights and that exercised them, on the land in question up to the present day.
Obviously this puts a substantial burden of proof on the natives. WL rights were relevant to a people who were nomadic hunter-gatherers? The court heard suggestions that because the ancestors worked flint into tool they were engaged in rudimentary manufacturing and that the making of copper bracelets represented the exercise of mining rights.
But the judge limited the rights to those clearly granted to natives under the Royal Proclamation of 1763, at the end of the war between Britain and France. He noted these rights were limited by the context of the time, namely that his majesty granted only "traditional uses" - the right to hunt, trap, fish, forage, and to use trees and bark for heating and cooling, homes and canoes. These so called "usufructory" rights fall well short of the claim of outright ownership implicit in most land claims.
(Incidentally, there is some dispute whether even these rights apply B.C. The province will argue that the time of the Royal Proclamation,
B.C. was terra incognita on British maps. Can a proclamation include a place that doesn't exist at the time it is made?)
Equally rigorous is the judge's demand that the claimants demonstrate that they are the legitimate inheritors of the rights in question.
Remarkably, the native tradition of oral history is admissible as evidence of continuous occupancy and use. However, the court scorned the oral evidence in the Potts case, which was recited by Chief Potts himself. The judge noted that the chief, 38, had a white mother and a father who was of less than pure ancestry, that he didn't speak the native language, and that he had only begun assembling so called oral history after he got interested in land claims.
After sifting through a mountain of genealogical evidence, the judge decided the natives failed to prove that they even existed as an organized band at the time of the Royal Proclamation or for many years afterward. He also noted that the last legitimate band member had ceased to occupy the land claim area in 1962, therefore the natives had given up the exercise of their rights in any case.
The judge did put some of the burden of proof on the Crown as well. If the natives can prove continuity of rights, then the Crown must prove that those rights have been extinguished by other means.
The waters in the Ontario case were muddied by the presence of a treaty, which is not the case with land claims in B.C. However, the judge did find title can be surrendered by native acquiescence in government actions or acceptance of government compensation. This part of the ruling may be significant for B.C. claims because the province insists that B.C.'s proliferation of Indian reserves constitutes a de facto substitute for the treaties that were used to transfer aboriginal claims in other provinces.
In no sense is the Potts case the final word on aboriginal title. But it does show the burdens of proof that may be demanded of both sides in future actions and it allows one to make a prediction about the Meares case: it will not only be one of the most politically charged court actions in
B.C. history, it will be one of the most fascinating.
Premier Bill Bennett's political advisers have been passing the word for months now that Indian land claims will be one of the major issues of the next provincial election.
Opposition leader Bob Skelly seems to agree. He has taken the role of Indian affairs critic unto himself and he has already accused Mr. Bennett of trying to create a "fear" issue on land claims.
If both leaders are right about the importance of the claims, then this fall's trial over the native claim to Meares Island is shaping up as one of the crucial court battles in provincial history.
The Meares dispute has already proved to be a microcosm of the past two decades of social protest. The sit-ins pitted environmentalists, forestry critics, native leaders, and political activists of every stripe against the province's biggest forest company and its main ally, the provincial government. MacMillan Bloedel's plan to log the island could not have come at a more sensitive time and place, given the widespread unemployment in the forest industry and that the 8,500hectare island is smack in the middle of Mr. Skelly's constituency.
The Supreme Court of Canada has ruled that there can be no logging until the full claim has been heard, so the stage is set for a titanic courtroom battle: MacMillan Bloedel and the B.C. government versus the natives and their supporters. The court will have to decide questions of law, the constitution, history, anthropology, the environment, forest management, and -like it or not - politics. The lawyers will have a field day.
The Opposition would sooner native land claims were settled outside the courtroom. Mr. Skelly thinks the issue is too big, too sensitive, to be decided by the kinds of technical questions that, often swing court cases. He says the main issue is not a particular piece of real estate, but the principle of aboriginal title. I think he would agree with the statement by former B.C. supreme court judge Tom Berger, in his book Fragile Freedoms: "To recognize aboriginal rights is to understand the truth of our own history, while for the native peoples, such recognition is the means by which they may achieve a distinct and contemporary life."
Mr. Skelly argues that the government could overcome the biggest obstacle to settlement by recognizing the validity of title. Then it would be a matter of negotiating the best settlement possible, and he believes compensation would be much smaller than the "billions and billions of dollars" predicted by Attorney General Brian Smith. He also believes such a settlement should be viewed as a benefit to society, since it would provide the natives with the resources to become productive and self-sufficient.
The New Democrats tend to see the court action in no-win terms. If the Indian claim fails outright - unlikely, in the Opposition view - that won't cancel the need to do justice to the natives and it might produce bitterness at the bargaining table. But suppose the natives' claim succeeds - a distinct possibility - then natives will have stronger cases in other claims, and the public may be provoked into backlash. Should the decision amount to a draw, then the two sides will still have to negotiate, as they would in the other two outcomes. So the Opposition says, why not begin negotiating now?
I think the Socreds have mixed feelings about the Meares confrontation, and some of the government's advisers agree privately that there is a risk, since a native win in court would strengthen other claims - which cover much of the rest of the province, as Premier Bennett has said many times.
But the prevailing government view is that the case will clarify the issue in the government's favor, while the outcome of negotiation based on prior recognition of aboriginal title would be far more expensive and politically risky. Attorney-General Smith in particular believes the native claim will fail, and his reputation is on the line
after many public statements to that fact.
The government's strategy in the Meares case, and on the whole question of aboriginal title, can best be understood as a series of fallbacks.
Its first position is that aboriginal title never existed. The second holds that if it ever existed, it was extinguished. Then the government will argue that even if title still exists, it has very little meaning in terms of compensation because of history, practice, and circumstance. The next fallback is that even if the natives are entitled to substantial compensation, the federal government must provide it under the terms that brought B.C. into Confederation. And the fifth and final position, though seldom articulated, is that the public will never stand for the level of compensation expected by native leaders, and therefore little risk attaches to the effort to defeat the claims in court.
One of the reasons for the Socred belief that the natives will fail is a decision last fall in which an Ontario court rejected a land claim on a number of grounds. I'll look at that action in detail tomorrow because it gives a flavor of the rich variety of issues involved in the concept of aboriginal title.