arrival of Europeans; had not been extinguished by the simple assertion of British sovereignty during the colonial era; and were now protected by section 35(1) of the Constitution Act (1987), the supreme law of Canada.
Although the Supreme Court of Canada, in their decision in the Sparrow case, upheld the position that, since Britain declared sovereignty, the “underlying title to all land” in Canada is vested in the Crown, they ruled that Aboriginal rights could not be implicitly extinguished by the mere declaration that British sovereignty had been asserted. Rather, the Crown would have to explicitly express their “clear and plain intention” in order to legally extinguish Aboriginal title to land. The first premise of the Province of British Columbia’s position since 1871 had been that no legally-recognizable Aboriginal title existed at the time the British arrived in what is now British Columbia. Therefore, according to the Province of B.C., an explicit expression of intent to extinguish title was neither required nor appropriate: what does not exist, could not be recognized. What could not be recognized, need not be extinguished.
The Supreme Court of Canada’s rejection of the implicit extinguishment argument in the Sparrow case, their reaffirmation of the requirement that the Crown make their intention to extinguish Aboriginal title explicit, and their finding that this had not been done, and hence Aboriginal rights still existed in the province, was a significant victory for B.C. First Nations: the provincial government could now be legally required to acknowledge their existence.
The Sparrow decision was hailed by many as the judgment that would bring an end to the long—and increasingly contentious—chapter in Canadian legal history in which colonial law, justified by archaic nineteenth-century notions of European superiority and Aboriginal inferiority, had dominated the courts. It was hoped that the Sparrow decision would provide the required legal framework within which a new, more equitable relationship between Aboriginal and non-Aboriginal people in Canada could be developed, a relationship that would reflect contemporary commitments to social justice and equality in a multicultural Canada. Lower courts in British Columbia during 1990-1991 had granted several First Nations’ applications for injunctions, halting development on their lands until the Aboriginal title question was settled by the courts.
Public opinion polls conducted during 1990 and 1991 had consistently shown that the majority of people in British Columbia thought the provincial government should reconsider its historic refusal to discuss land claims with the First Nations and should proceed, finally, to negotiate an agreement with them. Premier Vander Zalm—heeding the courts, public opinion polls, and increasing pressure from corporate representatives seeking government guarantees that British Columbia could indeed boast a “safe investment climate”—had allowed that the issue of land rights negotiations with First Nations should be revisited. For the first time in the province’s 119-year history, a provincial Ministry of Aboriginal Affairs had been inaugurated in the Fall of 1990.
After nearly 100 years of political lobbying for the right to even file such a petition in court, the Nisga’a3 First Nation—neighbours of the Gitksan and Wet’suwet’en—had been the first to launch a legal claim for recognition of their Aboriginal title in 1969. On March 7th, 1991, the day before Chief Justice McEachern’s ruling in the Gitksan and Wet’suwet’en case was handed down, a landmark tripartite agreement between the Nisga’a Tribal Council and the federal and provincial governments was announced.
No one had anticipated what did happen on March 8, 1991.
Chief Justice Allan McEachern had not been swayed by public opinion polls or newspaper editorials, or by the Supreme Court of Canada’s Sparrow decision, or by the copious evidence in support of the Gitksan and Wet’suwet’en claim that he had listened to for four years. In his 400 page Reasons for Judgment, the Chief Justice analyzed the testimony, reviewed the relevant points in law, and then dismissed the Gitksan and Wet’suwet’en claim. No Aboriginal title or rights had pre-existed European settlement, he ruled; and even if they had, they had been extinguished by the simple fact of Britain asserting sovereignty. Treaties had not been made, nor compensation paid, nor Aboriginal consent acquired. Nor were they required, he ruled.
Late One Night at the Legion
Like most everyone else interested in Aboriginal issues, especially in British Columbia, the judgment caught me off guard. The early morning CBC radio news on March 8, 1991, announced that the judgment had been released to the lawyers, who were in a “lock up” with the document until noon.4 I, too, had assumed that the outcome of this case would be relatively positive for the claimants: an historic turning point in the legal struggle for recognition of Aboriginal title and rights. When I turned on the CBC radio midday news it was not with bated breath or apprehension, but rather with curiosity to know the details of the judgment and what the implications were for all parties to this case. To say I was shocked by what I heard on the radio is an understatement.
During the years 1988 to 1991, I had been a graduate student in Anthropology at the University of British Columbia and at Simon Fraser University. These were also the years that the Gitksan and Wet’suwet’en case was being heard in the British Columbia Supreme Court. While I was not directly involved in the trial in any way, I had followed developments in this case through media, attended public information sessions, special lectures, support demonstrations, benefit dances and fund-raising performances; and bought raffle tickets. Social movements in general, and Aboriginal politics in particular, form both the central focus of my work, and the personal and social milieu in which I live my everyday life. Therefore, the progress of this high-profile court case had been the subject of countless informal discussions among friends and relatives over the course of its four-year duration.
For days following the release of Chief Justice McEachern’s ruling, the trial and the judgment were being talked about everywhere I went: at home, at the university, at social gatherings. Everyone I encountered had something to say about the Gitksan and Wet’suwet’en case and the Chief Justice’s decision. Most were shocked. Many were outraged. A few were smug. Others were bitter. Some said the Gitksan and Wet’suwet’en should never have gone to court to begin with: what can you expect from the white man’s courts? Since when could justice be found in law? Others felt betrayed by a legal system they had previously believed to be fundamentally fair. Some people were critical of the lawyers and the way they had conducted the case—some said they had asked for too much and overwhelmed the judge with mountains of data. Others said they had not asked for enough, and that they should have called even more evidence. Some said the Delgamuukw decision was an anomaly and didn’t represent the thinking of the judiciary as a whole. Others said the opposite: McEachern had simply used unfashionable words and precedents to express what his colleagues, who had learned to obscure these ideas with more “politically correct” language, really thought.
Anthropologists were insulted by the Chief Justice’s wholesale rejection of ethnographic evidence. Many were dismayed that anthropologists like Hugh Brody, Richard Daly and Antonia Mills—who had served as expert witnesses— had been summarily dismissed and reprimanded by the judge for being “advocates” whose participant observation research was not “credible.” Others were critical of the anthropology presented, and the anthropologists who had testified on behalf of the Gitksan and Wet’suwet’en: Hugh Brody had been too caustic. Richard Daly had been too obtuse. Antonia Mills had been too ethereal. They had presented too seamless a case. Others said they had indulged themselves in idealism and ideology: empiricism5 should have ruled the day.
Most Aboriginal people I spoke with were less shocked by the judgment than their non-Aboriginal peers. They were disappointed, and deeply hurt by the Chief Justice’s words. More than anything, they were angry at what they saw as the judge having insulted the Chiefs and Elders by his charge that their testimony had been “untrue.” Some Aboriginal people muttered resentfully about how much money the lawyers and the expert witnesses had made. Some asked why the anthropologists had ever been involved in the first place.
