COMMENTARY · 10th October 2011
The foundation of the Supreme Court of Canada’s appeal ruling on Delgamuukw has just been dealt a critical blow. Now the Asia Pacific Gateway and all BC plans for the Haisla lands such as Enbridge and tankers need no consultation. Today the basis, the foundation of Delgamuukw and the requirement for consultation no longer has validity.
The Gitxsan Wet’suwet’en trial of Delgamuukw vs the BC Government had the verbal testimony and authority of the First Nations elders and Hereditary Chiefs held in the highest regard. The recent Haisla trial between the Hereditary Chiefs and the elected band Council has just tossed all this consideration into the waste basket.
This decision will likely, in the short and long term, remove any need for consultation as the Court has just determined the verbal submissions of the Haisla elders and Chiefs were, though credible, not worthy of any historical factual knowledge for the Court.
All the First Nations who wish to use Delgamuukw and other subsequent rulings to protect their traditional territories, their rivers and lands from the Enbridge pipeline, destructive mining projects such as the destruction of Fish Lake and anything else are now on notice; the court has determined the culture is no longer recognized simply because elders and Chiefs testified.
The Government of BC and the Canadian Federal Government of Stephen Harper have just been delivered an early Christmas gift, just in time for the Enbridge JRP hearings and rulings. First Nations culture no longer counts.
The following is how the Gitxsan described the case from the 1980’s and 90’s: Source here.The plaintiffs in the Delgamuukw case were 35 Gitxsan and 13 Wet'suwet'en hereditary chiefs. The land title action was the longest running First Nations land claim court case in Canadian history.
The trial before the B.C. Supreme Court began in 1987 and was unique in that Gitxsan and Wet'suwet'en elders took the stand to testify in their language about their distinctive culture and relationship to the land. In other similar trials, this evidence was provided secondhand through the eyes of non-Native "experts" such as anthropologists.
After the BC Court ruled against them the case went to the Supreme Court of Canada, and again from the Gitxsan;Many of the arguments the Gitxsan made were accepted by the judges, including the fact that the province had no authority to extinguish aboriginal rights and the necessity of creating a new test for aboriginal title.
Today all First Nations people are facing the same issues once again. This most recent ruling by another BC Court Judge dismissed the evidence by the elders and the Hereditary Chiefs.
The Gitxsan and Wet’suwet’en did not pursue a second case. It costs a significant amount of money to pursue such an action. Therefore, on behalf of the BC and Canadian Governments it appears the Haisla through former Chief Councillor Steve Wilson, got to take the lead. This new action could be considered to have been started, or at least initiated, at the request of Gordon Campbell. Evidence shows he pushed Wilson to overrule the elders and Hereditary Chiefs to advance projects on Haisla traditional territories.
Justice Punnett referred to the rulings of the Supreme Court in paragraph 406 on page 98, continuing on page 99 in paragraphs 407 and 408, of his decision; Proof of the existence of the alleged court requires consideration of the evidence to be presented in light of the requirements set out in R. v. Van der Peet,  2 S.C.R. 507; Delgamuukw v. British Columbia,  3 S.C.R. 1010; and Mitchell v. M.N.R., 2001 SCC 33. In those cases, the court explained that trial courts must employ the rules of evidence in a manner that is sensitive to the inherent difficulties in adjudicating Aboriginal claims.
 I take from these cases that the flexible and sensitive application of the rules of evidence cannot have the effect of reducing the burden of proof faced by the party seeking to prove a fact in issue. The burden upon that party remains the same as in civil litigation generally.
 The evidence in support of the existence of this traditional court was sparse. No documentary record was presented. The evidence was presented by individuals considered to be elders, which I understand to be a term referring to those older members of the band who are considered to have wisdom and who are keepers of its traditional, cultural and historical knowledge.
Even though the elders and Hereditary Chiefs were discussed in great detail; their names and house groups, how the Chiefs conducted their affairs and their authority over the band council Justice Punnett stated the following; There was no evidence respecting how this body functioned, the source of its authority, or what custom law it followed.
Then in the following paragraph, 415, he states how the testimony by the elders was accepted by the entire Haisla Nation present in the Court room, those on both sides of the conflict. I pause to note that the elders, who are not parties to this action and who were called to give evidence on their knowledge of the alleged court, testified with the gravitas of elders and there was a palpable acceptance by those in the courtroom of their wisdom.
Yet Justice Punnett concludes this testimony was not good enough.
This is almost exactly the same basis for the Appeal decision of the Supreme Court of Canada to overturn the original Delgamuukw decision; that this evidence needs to be considered.
It may well be the BC Provincial Court Justice system, after watching the Hereditary Chiefs fight undefended by legal Counsel, recognized they wouldn’t have any money to take this to the Supreme Court of Canada let alone launch an appeal.
And if the BC Court is successful with this expectation, the decision will stand. Following that all BC mining corporations, Coal bed Methane extraction processes, crude oil tankers and pipelines will be fair game. No longer will the First Nations be able to bring their elders and Hereditary Chiefs into court to defend their claims to their traditional territories.
That is exactly what the fight was all about on the Haisla land. It had nothing to do with defamation; it had to do with the rights of the Elders, trapline holders and Hereditary Chiefs to defend their traditional way of life.
Stephen Harpers canoe has landed. Full Court ruling with details and historical record of trial process here
Mr. Peters: April, 1937...we were conquered.
Comment by Janice P. Robinson on 11th October 2011
I agree with you.
On behalf of our house, I admit and accept total defeat. The Esteemed Tsimshian Eagle House of Gitxon, at Kitsumkalum, B.C., has laid itself respectfully prone and naked (without a legally respected culture) since my nine aunts and uncles (Tsimshian, Eagle royalty) were declared "non-status Indians," and legally banned from their village. They were being traditionally raised by their Grandmother and uncle. Simoighet and Sigdmhana'a hid our regalia, wrote down our story, followed the children to Prince Rupert. My biological Mother (her generation's Sigdmhana'a Sim Muguul), was one of those children, and our whole family has endured unbelievable history...to this day! Now, everybody will know that history.
Yes, we had......and we have warriors (appropriately educated, knowledgable of the terriory, tooled and weaponed enough as you like it) who were/are fully capable of physical resistance. Fortunately, the Tsimshian Nation is one of the smartest and most civilized nations in the world. Under threat of police action, we "abandoned" our people, at Port Essington, and went to Kaien Island. The government thought they killed us! Ha! Kaien Island is undisputed territory of the Esteemed Tsimshian Eagle House of Gitxon.....and, the centre of the Tsimshian Nation!
Like other royal houses, from all four clans, we endured alongside our people. The Nation survived, and we are on the verge of thriving again.
Why should this mean anything to your non-Tsimshian children, Mr. Peters (real and/or potential)?
Because Tsimshian EAGLE Territory has always been ............. and should always be, public property. Comparable to your National Parks and natural wonders. It is that special, and the fact that we accept defeat does not change the fact that such beauty and magnificence does not belong in the private realm. Period.
I agree with you on the second point that you repeat, ad nauseum: In Canada, you are equal to all Tsimshian, and we are equal to you.
Fellow Tsimshian! Let us embrace the Indian Act, and deliver it ourselves....at every level. Right now! We can do better! Band councils, schools, health departments, everybody. Build our own residential/private schools (complete with superior recreational, living facilities). Let us use the Indian Act to build our own nursing homes, for our many survivors of the holocaust, who need them now! We can also accept non-natives, who will pay well for our superior care.
The Canadian government wants so badly to take the Indian Act (sent to us, in good faith by Britain's royal house) away that Waap Gitxon advises the nation that we keep it. It's worth billions, and it's ours (whether we're brown, yellow, white, or purple).
Let us wrest the hotsprings, Red Sand Lake, Squaderee, etc. out from those white-knuckled, desperate, "private" hands.......and let's get down to some real talk about regional economic development. ASAP.
Whii Nea ach,
Waap Gitxon, Kitsumkalum.
Comment by Mr. Peters on 11th October 2011
Are you kidding me, what possible difference would my nationality make? Short history lesson for you. Every nationality upon this planet has at one point either conquered or been conquered, and the older the nationality the more often this cycle has been repeated.
What I hate is this apartheid like system we have in Canada. If you are of a particular culture group you have benefits that no one else has, that is what I hate. I have to pay for my families dental plan, but if I were an Indian that would be covered for me. This also goes for housing, extended health coverage, taxes and the list goes on. If you are going to give one group a set of benefits you should give it to everyone.
Comment by Nancy on 11th October 2011
What nationality are you? Did you come from a conquered nation? Is that is why you are so full of hatred? Your people were conquered so everyone should be oppressed?
Say it is not so!
Comment by Mr. Peters on 11th October 2011
Could it be that there is still a glimmer of intelligence left in our judiciary. I do not believe any of their present "elders" were around several hundred years ago when their people roomed these lands. Therefore, they heard these stories from there patents who in turn heard it from their parents and so on. This is called hearsay and should never be allowed inside any court as it can not be substantiated. Who determines who's version of their story is the correct one?
Chief and Elder of Gitwangak Band
Comment by Clifford C.W. Morgan on 10th October 2011
Just the same, the Canadian Constitution of 1980 declared aboriginals do have a legal aboriginal rights, and right to self-government, and cannot be changed. This is what we stand on. B.C. Judical depends on what is in the Confederation of 1867, and makes their judgement on it, as we saw with Justice MacLauchlin, and Justice Prunnett.
Comment by Alfie McDames on 10th October 2011
I'm sorry but the Canadian Supreme Court ruling has precedence over the Provincial court ruling and if the chiefs and their supporters appeal to the higher court, the BC ruling will be defeated.
With respect, your article only appeals to the single tooth red necks among us.
Comment by joe on 10th October 2011