REPORTING · 20th January 2015
During a stunning performance of recollection, Louise Mandell captivated a crowd of mostly Gitxsan and Wet’suwet’en peoples as she recounted their history.
In less than two hours Mandell went through the past thirty years. She began by recalling and acknowledging the Chiefs and Clan unity of both the Gitxsan and Wet’suwet’en Nations. This was the foundation which brought about what is now referred to as the Delgamuukw ruling of the Supreme Court of Canada. Mandell then summarized the meaning of the Tsilhqu’in (Chilcotin) ruling of the same Supreme Court of Canada and made clear the future belonged to the Indigenous peoples if they would only unite and recognize each others title and rights. This she made clear in no uncertain terms. It is neither up to the Provincial or the Federal Governments, nor their Courts. It is only up to the unity and determination of the people themselves; uniting together and publically declaring their recognition of each of their neighbours territorial rights and aspirations. This she stated was virtually the only viable option.
In regards to the manner in which Treaty Societies, Indian Development Agencies, Band Councils and the like are attempting to do things on their own Mandell stated, the governments and industry are “Gorging on the buffet of individualism.”
In regards to returning to Court to get “title” to their territories Mandell asked, “Who could do a better recognition of your lands and borders than your neighbours?”
And to make these two statements clear for the Indigenous Nations “Rights and Title” perspective as being discussed throughout British Columbia and specifically North West BC, Mandell stated, the “proper title and rights holder is the Nation not the individual.”
Louise Mandell was absolutely clear on one fact; the BC Government along with the BC Treaty Commission (BCTC) are performing actions which are illegal. Some of the negotiations presently underway, along with the permits being issued to development and resource projects, breech clearly defined Canadian Law.
And Mandell is no light weight. She was one of the lawyers engaged in both these cases and in many others. She has been engaged in arguing and defending indigenous title and rights law successfully in BC and in the Supreme Court of Canada for over thirty years. If clarity and the ability to express incredibly difficult legal issues and concepts in a manner any person could understand, Mandell may be the very best legal mind in Canada on these matters.
The gathering of approximately 200 Gitxsan and Wet’suwet’en citizens was held on Monday, January 19, at the Gitanmaax Hall near the Village of Old Hazelton. This location is remarkable, as it is locally known as the foundation of all the NW Indigenous peoples. Temlaham or Demalahamid is believed to have its origins at the confluence of the Skeena and Bulkley Rivers. Many relate the ancient stories told and retold in the Feast Halls for thousands of years of God or the Great Spirit landing the first peoples canoe at this location.
The Gitxsan Government Commission in concert with the Office of the Wet’suwet’en invited and paid for Ms. Mandell to share her knowledge with their people. These two Nations still retain all the legal documents and evidence from their winning challenge to British Columbia’s claim that their aboriginal title and rights were extinguished. Indigenous “Title and Rights” law has these two nations Chiefs, Matriarchs and Clan families to thank. Almost all subsequent decisions and findings in favour of the indigenous peoples rests on the unanimous decision by the Supreme Court of Canada supporting their claim to their ownership of their lands.
The evidence was gathered, as Wet’suwet’en Nation young man, now elder, Ron described, “by walking 22,000 square miles on my pen.” He was instrumental in transcribing, translating and transliterating evidence from dozens if not hundreds of elders of these two Nations. The evidence is now boxed, stored and legally registered as “Commissioned Evidence”, which can be called on and “used until the end of time”, stated Mandell.
Yet the Delgamuukw & Gisdaywa vs BC case was started over 30 years ago and even their own peoples needed reminding of the facts and details. Most of the Chiefs, Matriarchs and elders who united as one people to force this issue have passed away. The original effort to start the legal action to claim the territory was initiated in 1984.
The trial began in Smithers on May 11, 1987 and the final Appeal Court ruling from the Supreme Court of Canada was delivered over 10 years later on December 11, 1997.
There was 374 days of trial between May 1987 and June 1990, which included direct evidence from 61 elders with 53 territorial affidavits. The BC Supreme Court ruled against the Gitxsan and Wet’suwet’en and the BC Court of Appeal failed to properly accept or recognize the ‘Title and Rights’ of the aboriginal claims. The case was pursued after the original trial concluded for another 7 years to achieve the unanimous ruling from the Appeal Court of the Supreme Court of Canada establishing clear “Title and Rights” parameters.
Many in attendance at this presentation stated it was well worth the cost and they would like to invite Ms. Mandell again to share these details with their Tahltan, Tsimshian, Nisga’a, Tlingit, Haida and Haisla neighbours.
TITLE AND RIGHTS LAW AS IT STANDS TODAY
The facts as related by Mandell recorded by our notes only, as no recording devices were permitted to provide more comfort for those in attendance, are as follows.
Title was never extinguished. BC has no rights even on “Fee Simple” lands. Oral history is history; no documentation is required. Aboriginal title includes everything, resources, minerals (above and below the land), economic benefit and choice over activities allowed. Any Nation that can demonstrate they exclusively or cooperatively occupied specific territories prior to 1846 does not even have to go to Court to prove it. As Mandell stated; “You already have title.” The imposition of the Colonial system from Great Britain on British Columbia has no legal territorial rights unless lands are left open for debate of exclusive or shared continuous occupation prior to 1846.
She explained it in a very concise manner. Going to Court requires a presentation of evidence to prove the territorial claims. Boundary issues can then be argued and debated. Huge tracts of lands then go up for a challenge by the Government lawyers and Judges.
The alternative and much more successful manner is to sit down with neighbouring Nations and work out any specific territorial issues independently from any other authority and declare each others National Boundaries as true and legitimate.
Again in Mandells words; “Who could do a better recognition of lands and borders than your neighbours?”
To clarify this point Mandell explained the indigenous peoples can demonstrate occupation and title back thousands of years. If the Gitxsan and Wet’suwet’en along with their neighbouring Nations; the Tsimshian, Tahltan, Nisga’a and Haisla all unanimously accepted each others territorial boundaries and the associated titles and rights (essentially Nationhood) the Courts could not find in favour of any challenger.
To ensure cooperation on this would require this declaration to include any boundary dispute be put aside. These matters could be resolved at a later date and be left for future Nation to Nation discussions such as the Portland Canal and the Arctic Circle boundary debates between Canada, the USA, Greenland and Russia.
The simple question would be who has a better claim to title. If six or eight National groups all recognized each others territorial boundaries and another group comes along and says, “hey, no, we claim that land,” the issue becomes the proof.
“Establish dispute resolution measures […] to establish exclusive occupation […] if you and your neighbour agree to boundaries what could the Province say?” stated Mandell. “So you must come back together as a Nation […] you already have title, exercise it […] you don’t have to go to court.”
The Federal and Provincial governments are currently exercising their Plan B. They are acting as if none of the court rulings have any effect. And if the nations continue to be internally and externally divided, in-fighting and arguing among themselves, the colonial governments can then argue; ‘The Indians don’t even know so we can claim we do.’ Only under these conditions can the Federal and Provincial Governments claim authority of the territories.
“GORGING ON THE BUFFET OF INDIVIDUALISM”
Presently governments and industry are engaging in “Strength of Claim” analyses. These are prepared and presented by various groups and entities for both indigenous and non-indigenous claims. This provides the courts, governments and industry the opportunity to deny the claim outright or to accept portions and deny other portions. It is the culture of “Individualism”, which Mandell stated, “came with the colonizers”, that has the governments and industry gorging themselves. Negotiations with groups outside of a united national representation is not only disruptive it is contrary to the interests of the Nation as a whole.
Mandell stated this approach is actually illegal as the issue “must be viewed by an aboriginal perspective.” This perspective is more communal in nature where the “strength of case” perspective is regarding “small spots” of lands. The Government will continue to minimize the strength of claim, not by stick but by carrot. They will pick and choose who to partner with and pit neighbour against neighbour.
In various cases the Provincial Government argued these “spot” strength of claim analyses constrains the title and rights of the Indigenous Nations. Mandell termed this the “denial theory’s embedded in the crowns arguments”. The Supreme Court of Canada rejected this stating ‘the rights are not confined to small areas but title exists throughout the territory.’
The BC Government and the Federal Government, along with the resource extraction industries continue on as if everything is “Business as Usual.”
The governments continue to negotiate with Band Councils, First Nations Development Corporations and Treaty Societies where they have been made fully aware these Councils, Societies and organizations have no mandate or authority and are actually considered illegal entities to negotiate on behalf of any territorial claims.
Further to this the issue of legality, or illegality, revolves around the concept of “Free, Prior and Informed Consent”, or as Larry, an attendee used it during the question and answer period; “F-PIC”.
The first word of this legal precept is “FREE”. Once money is exchanged or offered to groups to accept or engage in the process of land tenure, use or occupation, the matter of CONSENT is no longer considered FREE.
Enforcing free, prior and informed consent must be performed without outside pressure. Funding is outside pressure. This includes “honorariums” or dis-honorariums if you will.
Informed requires access to “All Knowledge”. This means all the information available must be freely provided. Informed means if any knowledge of any aspect is withheld the legal consideration of F-PIC has not been achieved.
CONSENT means the right and ability to say NO. PRIOR means before any agreement is signed or made.
Mandell went even further stating the “thought structure” of the governments was “competitive and racist”, your “ancestors [are] portrayed as wanderers, devoid of law, uncivilized.” She used this to describe how and why they negotiate treaties with Band Councils, stating they are using this method to separate the people from their territory.
To counter this manipulation of the indigenous people’s title and rights to their lands Mandell stated they must take control, act in the manner of a land owner. Trespassers must be advised and warned, land could be occupied and cultivated, resources controlled and simply just being on the land.
It gets better in the eyes of the true believer of Indigenous National Territorial title and rights. Any entity who attempts to occupy or is already occupying lands clearly known as lands belonging to an identifiable Indigenous Nation is trespassing unless the Clan or House who has occupied the lands prior to and since 1846 has issued the permit and rights. No Company or Industry can claim they have a superior right just because the BC Government issued a permit.
The example was almost humorous. Imagine sitting in a court room where a company has been sued by an Indigenous Nation for destroying or disturbing lands without authority. The company claims they have the authority to engage in the activity on some specific lands as the BC Government issued them a permit to do so. The Nation then states “Well then prove to us that the BC Government has greater authority or title to our Nations territory than we do.”
That example drew much applause from those gathered to listen.
“Proper title and rights holder is the Nation, not the individual,” stated Mandell. Therefore signed MOU’s are not valid.
Another humorous example was when Mandell suggested the government be invited into a discussion of their “strength of case or claim” in regards to title. The government cannot claim anything prior to 1846 whereby the Indigenous Nations have the opportunity to claim title by continuous occupation prior and since.
Equally clear was once the indigenous land owners are made aware of these trespasses against their territories and how these trespasses are without their Nations full authority and consent an action for trespass can be initiated for damages. This is known as “Wrongful interference to Aboriginal rights.”
There is a time limit though. One must take action within 30 years of the knowledge of the trespass. In the case of the Gitxsan and Wet’suwet’en the damages were initiated and brought before the court. Mandell states they are still in a great position to argue the case for damages.
In treaty negotiations the claims for damages are extinguished as are the legal “rights and title” arguments. Mandell stated, “In treaty the government will not consider costs of wrongs of the past.’
“So you must come back together as a Nation”, stated Mandell. However she had a lot of advice to ensure pitfalls are avoided.
It is important “to not have fixed positions.” This was important in many ways. Territorial boundaries, clan name disputes, responsibilities, past grievances must all be set aside for the greater good. If territorial boundaries such as the Gitxsan, Tsimshian, dispute being instigated during the attempt for a Treaty settlement by the Tsimshian Bands of Kitselas and Kitsumkalum through the BC Treaty Commission process are not resolved amicably between the Tsimshian Nation as a whole with the Gitxsan Nation, the BC Government can then claim all of the Territory as their own.
Making an individual “Clan” claim opens up the same opportunities. If Band Councils, Development Organizations and/or Treaty Societies are allowed to “make deals” or enter into court proceedings and disputes this will leave all the disputed lands up for grabs by the provincial Government, “The crown”.
If one were to attempt to make claims to lands they couldn’t prove, a court loss could be a permanent loss to the lands to any indigenous Nation. As Mandell stated, “So don’t prejudice by putting land forward that you can’t prove.”
To demonstrate the risks Mandell referred to the Tsihiqot’in Court action. The Court denied the claim to the lands at the Prosperity Mine location. This presents an entirely new challenge for the Indigenous peoples to have any say regarding the activities at the site. She stated the government gets the territory by default.
Again, there would be no point in putting any territory forward for debate if each nation made a declaration and determination of each others nation’s territorial boundaries.
IF ONE DECIDED TO GO TO COURT
It was made clear the best option was to declare nationhood with the neighbouring nations and to let governments and industry make the legal moves to claim the nations are not legitimate.
An effort to re-engage in the courts to prove title over specific territories will require what Mandell called a “Gap Analysis”. The issues brought before the Supreme Court of Canada are fixed. Any effort to use the previous cases, including the Tsilhqot’in and Delgamuukw will require having the lawyers ensure the issues that will be brought before the Court will not be found to be contrary to the findings of these previous cases. This is due to the perceived absolutes of these decisions. Any lawyer making an argument that contradicts any of the thousands of pages of details surrounding these previous court decisions will critically wound an aboriginal territorial rights and title claim case.
One does not have to prove any aboriginal title details as this has already been determined to include everything including the sub-surface rights, one only has to prove exclusive occupancy. This is done by proving the use of laws and a land tenure system. In the case of the Northwest BC Nations the land tenure is well established by the Chiefs and Matriarchs, or in the Gitxsan, Tsimshian and Nisga’a tongue, the Simgigyet’m authority over their specific territories within their Nations.
And again there are the pitfalls.
First is this. Who determines who represents the legitimate and true authority of any given Nation?
In 1987 the Gitxsan and Wet’suwet’en were united under their Hereditary Chiefs and Matriarchs with their Clan families and house groups. In the 1990’s up until Gordon Campbell took office the Tsimshian were united as a single Nation working together to make a claim to their national boundaries. Today both nations are divided internally and suffering from external disputes where both the Tsimshian-Kitselas and Gitxsan-Gitwangak are in a dispute over the same territory.
If these issues are not resolved amicably between the Nations the government again may win these lands by default as even the Indians don’t agree.
In the case of the Tsimshian Kitsela’s and Kitsumkalum in their land tenure disputes with the various Gitxsan tribes the entire legal challenge could end in a quagmire whereby the Provincial government would become the beneficiary of the dispute with both the Gitxsan and the Tsimshian losing collectively.
The same applies to the Gitxsan as a whole. If various clans attempt to “go it alone” territorial conflicts might see both sides losing territory to “the crown”.
During the question and answer period an individual raised the spectre of the Federal Government initiating a new provision called the “Trespass on Crown Lands Act”. The explanation was this would assist in avoiding having to apply to the court for injunction applications.
In regards to this being applied to Indigenous National Territorial lands Mandell stated, “Nothing excites me more.”
THE FUTURE AND WHERE TO GO FROM HERE
As Freda from the Unistot’en Clan of the Wet’suwet’en peoples stated, “I’m tired of going to meetings and having nothing happen after that.” The Unistoten have already returned to the land and issue trespass warnings taking full title and authority over their territory.
And the meeting became focused on the next steps.
“We’re actually back to where we stand together” stated Yvonne from the Gitxsan, “We need to join together and become one.”
Bridie added, “We’re not fighting we just have differing views.
In an amazing reflection related by Ron, the Wet’suwet’en man who stated he walked 22,000 square kilometres on his pen recording all the presentations and evidence of the elders, chiefs and matriarchs for the Delgamuukw trial, he said ‘during all this time, no matter how badly the lawyers treated them he never heard one single word of disrespect issued by any one of the elders against the lawyers.’ He stated this is not talking about respect, it was showing it and living it.
Cynthia, one of only two observed from the Tsimshian Nation attending this gathering, referred to the carrot and stick method described earlier in the meeting where Mandell claimed the government was offering carrots to different Band Councils and Clans to accept deals apart from the Nation as a whole. She stated the government is offering the whole garden to the Kitselas and Kitsumkalum of the Tsimshian, not just a carrot asking ‘can we sue the BC Treaty Commission directly?’ Mandell stated yes, there is legal recourse but you must be strategic. Earlier Mandell had stated suing the Band Council, your own people, was not in a Nations best interests as again, the Governments win when the indigenous people fight among themselves.
82 year old Gitxsan elder Bruce stated “This is all old news to some of us”, and warned not to take the land back until they fix it. “Give BJ $200 billion to fix it.” he joked and then told the story of how, regarding the Tsilhqot’in, 5 men were hanged for trying to stop the industrialists and colonial government from spreading small pox. He changed the tenor of the meeting by stating they should start celebrating together, “Hold a Victory Parade”, adding “Everyday a child is born to the Gitxsan people.”
Theresa Morris of the Wet’suwet’en Nation has developed a Nation to Nation Declaration which she wished to share.
The Gitxsan Government Commission wished to let everyone know they were considering setting up a “Working Group” to determine the next steps and advised those who wished to participate contact Ilene Joesph.
Years ago the Provincial Government shared a map produced by the Union of BC Indian Chiefs which outlined the territorial boundaries of the various Indigenous Nations of BC. We have attached these maps for reference only. These boundaries were accepted as part of a plan to build a “New Relationship”. This map might set the standard on which to build by simply accepting these already determined boundaries, if a different agreed upon map wasn’t readily available to bordering Nations.
A profile image of an male face looking east is hidden within the river systems of this region, the Skeena is the nose and lips, the Stikine top of the head and the Nass is the hairline.
Comment by KIYEN HIT on 30th October 2015
Gulnachish,(thanking you with respect)all who fought for the rights that exist today.It is important that as many people know what the legal status is in regard to indigenous issues in "bc" turtle island territory.One can only hope that these words help us unite together as one again.Again thankyou very much for sharing.
Ground Breaking Victory for First Nation’s Land Rights.
Comment by Ken Paulin. Metis Journalist on 21st May 2015
Ground Breaking Victory for First Nation’s Land Rights.
By: Ken Paulin
The highest court in BC has made a ruling that is a complete game changer for Aboriginal land claim rights. The BC Court of Appeals has ruled that Industrial Giants must respect Aboriginal territorial claims just as they would for any other Canadian Landowner. The decision has incredible ramifications, as it paves the way for First Nations to launch lawsuits to protect their territory from private parties, even without having to prove aboriginal title.
Three Judges overturned a lower court ruling that stated the Saik’uk and Stellat’en First Nations did not have a right to sue mining giant Rio Tinto on the premise that Aboriginals must first establish their title. The suit was originally initiated in September 2011. The Nations contended that the dam Rio Tinto had created in the 1950’s to power their mining operation had caused nuisance and breached their right to the natural waterway that runs through their land. They are seeking damages for property rights violations, alleging the electricity generator harmed the Nechako River system and fisheries. The decision means they can now take their claim to trial.
This case sets precedence that now has to be applied across the province. Opening the door for First Nations to seek damages from industry giants in forestry, mining and any other private institution that affects their territory. It may also effectively halt the much contested pipeline that would have carried oil from the Tar Sands. It is difficult to see a route from Alberta to the Pacific Ocean that doesn’t cross Aboriginal land.
Justice David Tysoe wrote that setting a separate standard for Aboriginal people, before they can sue other parties to enforce their rights, is inconsistent with the charter.
“Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims…,” he wrote.
Upon his return home, Stellat’en Chief Archie Patrick spoke to me about what he anticipates the next step will be. He said that he expects Alcan to appeal to the Supreme Court of Canada. He also says that he looks forward to this as he believes that if this is heard at a federal level, they will not overturn the BC ruling and that the presence won in British Columbia will then apply to all First Nation's across the country. Archie Patrick said "I can only quote my lawyer, he looked at this case and the ruling and said to me...This is gold".
whether this goes before the Supreme Court of Canada or not, as it stands today, all unseded First Nation's in BC have the legal grounds to stop exploitation by corporations and suit for damages on indigenous land.
United they can stand
Comment by mike mcleod on 21st January 2015
This is an awesome article, well written kudos for getting this out there, thank the creator for people like Lousie Mandell and others who can see how we can all unilaterally come together and provide a solution.
Comment by Kathy Wesley on 21st January 2015
Informative article. I would have gone to listen to Louise Mandell if I knew about it.
Unity: It is possible!
Comment by Don Camsell on 21st January 2015
Well done! A great summary.
I hope many people take the time to do some more research and understand your well written article.
I have heard from others of how well they agreed with Louise's message.