Unresolved aboriginal land claims in British Columbia.

Aboriginal land claims from British Columbia have been all over the news for the last few years. The Agreement in principle signed between Canada, BC and the Nisga'a Tribal Council forms the basis for the first modern-day treaty in BC (and the approval process shows signs of throwing the entire BC government into turmoil.) The Supreme Court of Canada, in a case called Delgamuukw v. British Columbia confirms at least the possibility of unresolved Aboriginal title claims over much of the province. So what is going on there?

It is often difficult for anyone from east of the Rockies to understand anything that goes on in BC. (I'm an Albertan and couldn't resist the dig), but it is at least possible to put the disputes into some kind of historical and legal context.

For the most part, it was always acknowledged that North America was legally occupied by the aboriginal peoples before the assertion of British Crown sovereignty and that at the assertion, the native people became subjects of the Crown and entitled to rights including possession of lands. The Royal Proclamation of 1763 by King George III (he was the one that let the American Colonies slip away and was probably barking mad to boot...you remember the recent movie?) acknowledged the aboriginal people as "nations or tribes", and most importantly recognized that they continued to possess their traditional territories until they are "ceded to or purchased by the Crown."

Captain Cook landed on the coast of BC in 1778 and all through the 1800s, Canada's expansion was accompanied by the signing of Treaties with the Indian nations such as the numbered treaties which at least attempted to settle aboriginal land questions in the prairies and set aside reserves on which the nations could continue culturally. So you would think that aboriginal title issues would have been uppermost in the minds of the leaders of the governments of Canada and BC, wouldn't you? Well, they weren't, and treaties were, for the most part, never even attempted to be negotiated. It's difficult to say exactly how various governments conveniently forgot this important piece of business. My personal belief was that the newly industrialized Victorian British really believed that old "white man's burden" stuff and maybe because they were coming in railway carriages and steam ships instead of clawing their way across the continent in canoes, relying on the native inhabitants, they just didn't see. It probably didn't help that during the 1800s, smallpox and measles pretty much devastated the native population.

The bottom line though is that their legitimate claims never were settled. Various native groups in BC going back to the 1800s continued to meet with the governors, sending delegations to Ottawa and London, pressuring for a resolution of their claims. They never went away and, slowly but surely, negotiated settlements and lawsuits are being finalized. For example

* In 1984, the Musqueam Band's lawsuit against the federal government over the lease of 162 acres of their land to the Shaughnessy Golf Club in Vancouver was finalized in a ruling by the Supreme Court agreeing with the Band's position that the federal government ought not to have given a long-term lease of their land to a golf course without specific consent.

* In 1995, the Supreme Court told the federal government that when it gave some of the Blueberry River Indian Band's land to the Department of Veteran's Affairs, it had no reason to give the mineral rights away for nothing along with the land.

* In 1997, the Supreme Court told the federal government and the Province that the Gitksan and Wu'suwet'en Bands had a maintainable claim for aboriginal title and that the trial courts had better listen to all the evidence, including the oral histories of the Bands for evidence that would show the location and extent of their lands.

Obviously, like any other potential problem that was ignored, it's a lot harder to fix things up now than it would have been originally. But neither the problem nor the Indian nations have gone away, and the land claims problems will only get harder to solve if steps are not taken now. Not all of this is easy for the native claimants. They would have to prove that they exercised exclusive sovereignty over a territory (not just passing over or occasionally using it); there are conflicting claims with more than one nation claiming to be entitled to an area, and dealing with the government is never easy. In each one of the above cases, governments had to be dragged kicking and screaming all the way to the Supreme Court when often the basic facts seemed quite straightforward (for example, you can't sell someone else's land without their consent).

The Supreme Court recognized the limitation of a litigation-based approach in the Delgamuukw case and urged the parties to negotiate in good faith, saying: "...the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith...Let us face it, we are all here to stay." An alarmingly sensible sentiment from a judge, and perhaps a fitting note to end on.

PostScript: For those of you with Internet access, there are many informative Internet sites on aboriginal issues. Bill Henderson, a Toronto lawyer, maintains a site full of links at www.bloorstreet.com/300block/aborl.htm.

Fred R. Fenwick is a lawyer with the firm of Walsh Wilkins in Calgary, Alberta.