CANADA:
Court Faces Key Decision on
"Aboriginal Title"
Am Johal
VANCOUVER, Feb 8 (IPS) - The Xeni Gwet'in First Nations in the western
interior region of British Columbia are taking ancient myths into the courtroom
as part of a nearly two decades-long battle with the Canadian government over
the title to their land.
"This case is well known and will set a precedent on aboriginal title based on
earlier court decisions, as well as establishing the government's role in
providing financial support to First Nations for legal costs," said Doug
McArthur, a professor in public policy at Simon Fraser University.
The Xeni Gwet'in is one of six bands in the Tsilhquot'in National Government.
They have claimed ownership of the rolling hills of Nemiah Valley, nestled in
the snow-capped mountains of the wild Chilcotin region of British Columbia --
altogether some 430,000 hectares.
Many of the Xeni Gwet'in, who number close to 400 today, spoke English as a
second language, if at all. A road connection was not built until 1973.
Electricity comes from generators, and telephone lines were installed only two
years ago.
According to Indian and Northern Affairs Canada, a government agency, court
decisions so far have not resulted in a clear definition of native land rights,
and the treaty process is critical to resolving uncertainty. However, Canadian
law has confirmed that aboriginal title is based in both law and history, and is
a unique property right -- although it can be infringed on if the government
offers a compelling rationale.
As part of the trial, now before British Columbia's Supreme Court, Xeni Gwet'in
elders testified about the traditional names for mountains and rivers in the
region. Mount Tatlow was named Tsilos and is believed to have once been a man,
while a nearby peak is known as his wife Eniyud. The Tsilhqot'in say the couple
had a fight and refused to get back together, and were turned to stone for their
stubbornness.
In 1864, in what was known as the Chilcotin War, band members clashed with land
speculators who wanted to build a toll road into the area to support the Gold
Rush and threatened to expose the local people to smallpox if they resisted.
The Tsilhquot'in killed 15 people in the uprising and an armed militia was sent
to hunt them down. The Tsilhquot'in agreed to peace talks, but leaders were
subsequently arrested and seven were hung, including the leader Klatsassin.
As a result, although more a century has passed, there remains a deep level of
mistrust toward the government among band members, who view the relationship as
one that still bears the hallmarks of a colonial mentality. There is a military
installation in the region, and many historians view the Chilcotin uprising as
the last war on Canadian territory.
Gary Campo, one of the lawyers working for the Xeni Gwet'in, told IPS that the
case has major implications for First Nations bands in and out of the treaty
process.
"It will define legal boundaries and set up the goalposts for what aboriginal
title is. First Nations will know where they stand in negotiations and what the
premise of the relationship will be. Everyone will be able to negotiate from a
better position whether the issues are about resource extraction, territory or
defining aboriginal title. It is the most important case on the docket right
now," said Campo.
The case was first filed by the band in 1989 over hunting and fishing rights,
and to protect old-growth forest from logging and mining interests. Its scope
has since widened to include major issues relating to the treaty process in
British Columbia, where many of the First Nations bands never officially ceded
their territory. Many First Nations and governments officials will be closely
watching the outcome of this case.
Justice David Vickers of the BC Supreme Court visited the Nemiah Valley region
two years ago to listen to some of the cultural myths and traditional stories
told by the elders in their native language.
"The use of oral history as evidence is not new. It has been accepted in the
past and oral history evidence falls within one of the exceptions to hearsay,
provided individuals pass the test for threshold which is defined as necessity
and reliability. It is the most important aboriginal case on the docket right
now because it will define aboriginal title which should give certainty to the
process which is good for everyone," said Campo.
Vickers used an open court process that accommodated village elders who could
not travel to testify. Cultural myths and traditional stories were orally
communicated and translated for a court reporter. The sessions included
nighttime sittings to respect the cultural traditions of the Xeni Gwet'in, which
involve sharing stories after sunset. Chief Roger William spent 40 days
testifying.
The BC Supreme Court is supposed to rule in the precedent-setting case this
spring, but many expect the trial to take much longer.
Joe Alphonse, director of government services for the Tsilquot'in National
Government, said the case has already gone on for too long and has sparked some
tense confrontations, including a 1990 roadblock near Chilko Lake to stop
logging in the area. He said that the Xeni Gwet'in requested meetings with
government and industry, but it was just business as usual.
Alphonse described the 1864 Chilcotin War as one of opening up the gold fields,
and how the speculators abused the native people in their arrogance and lust for
money. "We never ceded our territory. We went to war, where our members were
killed by government authorities after they had signed on to a peace accord. We
have good reasons not to trust government here," he said.
"Treaties are between nations so we will only deal with the federal government
of Canada. Our elders are our anthropologists. Every society has its customs and
beliefs and we have ours -- the courts have finally acknowledged this."
"In the past, the relationship hasn't been a good one. The authorities haven't
respected our beliefs and customs. We had four separate community referendums to
decide to go to court. They just wanted us to shut up and be good little
Indians," said Alphonse. (END/2006)
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