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Gitksan and Wet'suwet'en decision could have disastrous effects


Amy Santoro, Windspeaker Staff Writer, Vancouver







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If the Gitksan and Wet'suwet'en land-claim decision is allowed to stand it will have a disastrous effect on Native across the country, says a vice-chief of the Assembly of First Nations.

Ovide Mercredi said the decision will make other land claims difficult to resolve because "it's based on the idea Indians have no land rights unless given to them by the Crown."

After four years of trial and deliberation Chief Justice Allan McEachern ruled March 8 the 8,000 Gitksan and Wet'suwet'en Indians have no claim to the resource-rich 57,000 sq. Km area of interior B.C.

In his 400-page judgement McEachern said aboriginal rights "exist at the pleasure of the Crown and they may be extinguished whenever the intention of the Crown to do so is clear and plain."

That laws for settlement were passed constitute "a clear and plain" enough intent to extinguish aboriginal title, he said.

A Supreme Court of Canada ruling on the Sparrow Case last spring established the Crown must have had "clear and plain" intentions to extinguish aboriginal rights when it signed treaties. Since so few treaties were signed in B.C., Native took the case to mean they had not extinguished their aboriginal rights. The Sparrow Case gave Natives more authority to claim aboriginal rights to land, said Mercredi.

"The title to the soil of the province became vested in the imperial Crown by operation of the law at the time of sovereignty," said McEachern.

Basically, said McEachern, the pre-sovereignty rights of aboriginal "were to live in their villages and to occupy adjacent lands for the purpose of gathering the products of the lands and waters for subsistence and ceremonial purposes."

Aboriginal rights "did not include ownership or jurisdiction over the territory," he said.

Keith Penner, chairman of the 1983 parliamentary committee on Native self-government, said the ruling will be "devastating because the judge fell back on the old policy of assimilation."

He said the decision won't make it easy for Alberta bands seeking land-claim settlements because "other courts may use this as a precedent. But the McEachern decision, if upheld, will have the greatest impact in B.C. where there are virtually no treaties.

But Indian Affairs Minister Tom Siddon said it may speed up resolution of outstanding Native issues.

In a telephone interview from Manitoba, Mercredi said the decision "shows a colonial mentality consistent with the majority thinking in Canada aimed at assimilation."

Mercredi said the decision "denies our human rights and our distinct status in the world."

The ruling proves Native "will never find justice in another persons court especially when it involves a controversy over something like how to maintain a way of life or how you acquire wealth which means lands and resources."

Unlike Native leaders throughout B.C. who denounced the decision as racist, Mercredi said the judge is "bound by his culture. He has a legal mandate to uphold the traditions of his society. Unless he's a very enlightened individuals we can't expect a decision that'll recognize our rights."

Bruce Clark, a lawyer known for his defense of Indians, agreed the decision was not racist. He said the judge was misled by the Natives' lawyers, who mistakenly argued the sovereignty concept as ownership and jurisdiction.

Penner said the decision puts "land claims squarely into the political arena where justice is not often found. It says give up the idea of solving by way of litigation."

In his final comments, McEachern said difficulties facing Natives "will not be solved in the context of legal rightsit is for elected officials, not judges to establish priorities for the amelioration of disadvantaged members of society."

Although an appeal to the Supreme Court of Canada is expected, Mercrecdi said it's hard to say what the outcome will be.

The ruling puts an end to the longest and most important land-claim case in Canada's history.