1	               September 1993
     4	             Native Land Claims in British Columbia
     5	    Judgment of the Honourable Chief Justice Allan McEachern
     6	                Supreme Court of British Columbia
     7	                          March 8, 1991
     9	                ================================
    11	                                                       No. 0843
    12	                                                Smithers Registry
    16	                 In the Supreme Court of British Columbia
    21	               Between:
    23	               DELGAMUUKW, also known as KEN MULDOE, suing on
    24	               his own behalf and on behalf of all the
    25	               members of the HOUSE OF DELGAMUUKW, and others
    27	                                                  Plaintiffs
    30	               And:
    34	               OF CANADA
    36	                                                  Defendants
    39	Reasons for Judgment of The Honorable Chief Justice Allan
    40	McEachern.
    42	Dates of Trial: 374 Days between May 11, 1987 and June 30, 1990
    44	Counsel:
    46	Stuart Rush, Peter Grant, Louise Mandell, Michael Jackson, Murray
    47	Adams, Stanley Gunther, Leslie Pinder, Michael Fleming and David
    48	Paterson for Plaintiffs
    50	D.M.M. Goldie, Q.C., C.F. Willms, P.G. Plant, N.J. Prelypchan,
    51	J.M. Mackenzie, T. A. Sigurdson, L.A. Fenlon, and D.J. O'Byrne
    52	for the Attorney General of British Columbia
    54	J.A. Macaulay, Q.C., M. Marvyn Koenigsberg, Loryl D. Russell,
    55	Murray T. Wolf and Michael W. Frey for the Attorney General of
    56	Canada
    58	Date: Friday, March 8, 1991
    62	=================================================================
    65	     1.   The last Great Ice Age, which lasted many thousands of
    66	years, covered nearly all of British Columbia.  It ended about
    67	10,000 years ago.
    69	     2.   The origins of the Gitksan and Wet'suwet'en and other
    70	aboriginal peoples of the north-west part of the province are
    71	unknown.  It is generally believed they migrated here from Asia.
    73	     3.   There is archaeological evidence of human habitation in
    74	the territory as long as 3,000 to 6,000 years ago.  This is
    75	limited to village sites both at the coast at Prince Rupert
    76	harbour and at a few locations alongside the Skeena and Bulkley
    77	Rivers.  The evidence does not establish who those early
    78	inhabitants (or visitors) were.
    80	     4.   The plaintiffs are 35 Gitksan and 13 Wet'suwet'en
    81	hereditary chiefs who have brought this action alleging that from
    82	time immemorial they and their ancestors have occupied and
    83	possessed approximately 22,000 square miles in north-west British
    84	Columbia ("the territory"), and that they or the Indian people
    85	they represent are entitled, as against the province of British
    86	Columbia, to a legal judgment declaring:
    88	          (a)  that they own the territory;
    90	          (b)  that they are entitled to govern
    91	               the territory by aboriginal laws
    92	               which are paramount to the laws of
    93	               British Columbia;
    95	          (c)  alternatively, that they have
    96	               unspecified aboriginal rights to
    97	               use the territory;
    99	          (d)  damages for the loss of all lands
   100	               and resources transferred to third
   101	               parties or for resources removed
   102	               from the territory since the
   103	               establishment of the colony; and
   105	          (e)  costs.
   107	     5.   No relief is claimed by the plaintiffs in this action
   108	against Canada which was joined as a defendant for procedural
   109	reasons.  The action against Canada is dismissed. In this
   110	Summary, "Crown" refers to the Crown in right of the Colony or
   111	Province of British Columbia except where the context indicates
   112	otherwise. 
   114	     6.   The plaintiffs allege the territory is divided into 133
   115	separate territories (98 Gitksan, and 35 Wet'suwet'en), and each
   116	of these separate territories is claimed by an hereditary chief
   117	for his House or its members. Some chiefs claim several
   118	territories, and some chiefs claim territories for other chiefs
   119	who are not plaintiffs.
   121	     7.   Map 1 on p. 6 of the judgment is a generalized map of
   122	the province showing the general location of the territory.  Map 2 at
   123	p. 7 is a reduction of a detailed map of the territory.  It shows
   124	the approximate external boundary of the territory.  The
   125	individual territories claimed by the Gitksan and Wet'suwet'en
   126	chiefs are shown on maps 3 and 4, at pp. 8 and 9.  [Maps are
   127	unavailable]
   129	     8.   Aboriginal interests arise (a) by occupation and use of
   130	specific lands for aboriginal purposes by a communal people in an
   131	organized society for an indefinite, long period prior to British
   132	sovereignty; or (b) under the <+Royal Proclamation, 1763+>.
   134	     9.   Aboriginal rights under (a) above arise by operation of
   135	law and do not depend upon statute, proclamation or sovereign
   136	recognition.  Such rights existing at the date of sovereignty
   137	exist and continue at the Crown's "pleasure."  Unless surrendered
   138	or extinguished, aboriginal rights constitute a burden upon the
   139	Crown's title to the soil.
   141	     10.  <+The Royal Proclamation, 1763+> has never applied to
   142	or had any force in the Colony or Province of British Columbia or
   143	to the Indians living there.
   145	     11.  Linguistics, genealogy, history, and other evidence
   146	establish that some of the ancestors of some of the plaintiffs or
   147	the peoples they represent have been present in the territory for
   148	an indefinite, long time before British sovereignty.
   150	     12.  These early ancestors lived mainly in or near several
   151	villages such as Gitanka'at, Gitwangak, Kitsegucla, Kispiox,
   152	Ksun, Old Kuldo, New Kuldo, Gitangasx and possibly at Gitenmaax
   153	(Hazelton) which are all on the Skeena River; at Kisgegas on the
   154	Babine River; and at Hagwilget and Moricetown on the Bulkley
   155	River.  Each of these villages, six of which are now abandoned,
   156	were strategically located at canyons or river junctions where
   157	salmon, the mainstay of their diet, could most easily be taken.
   158	Furthur, these early ancestors also used some other parts of the
   159	territory surrounding and between their villages and rivers, and
   160	furthur away as circumstances required, for hunting and gathering
   161	the products of the lands and waters of the territory for
   162	subsistence and ceremonial purposes.
   164	     13.  [Paragraphs misnumbered in the original. No paragraph
   165	13.]
   167	     14.  Prior to the commencement of the fur trade these early
   168	aboriginals took some animals by snares, dead falls and other
   169	means, but there was no reason for them to travel far from their
   170	villages or rivers for this purpose, or to take more animals than
   171	were needed for their aboriginal subsistence.
   173	     15.  There may have been sparse incursions of European trade
   174	goods into the territory overland from the east or south, or from
   175	unknown seaborne sources (perhaps from Asia) before the arrival
   176	of Capt. Cook at Nootka on Vancouver Island in 1778.  That date,
   177	however, or more particularly the start of the sea otter hunt on
   178	the north Pacific coast which started within the following 5
   179	years, was the likely start of European influences in north-west
   180	North America.
   182	     16.  The fur trade in the territory began not earlier than
   183	the establishment of the first Hudson's Bay posts west of the Rockies
   184	(but east of the territory), by Simon Fraser in 1805-1806, and
   185	more probably a few years after that.
   187	     17.  Trapping for the commercial fur trade was not an
   188	aboriginal practice.  Apart from commercial trapping, there were
   189	no significant changes in aboriginal practices between first
   190	contact with European influences within a few years on either
   191	side of 1800 and the assertion of British sovereignty.  The use
   192	of modern implements such as mechanical traps and guns since the
   193	time of contact does not change the nature of an aboriginal
   194	right.
   196	     18.  The law of nations and the common law recognize the
   197	sovereignty of European nations which established settlements in
   198	North America.
   200	     19.  Great Britain asserted sovereignty in the territory not
   201	earlier than 1803, and not later than the <+Oregon Boundary
   202	Treaty, 1846+>, or the actual establishment of the Crown Colony
   203	of British Columbia in 1858.  For the purposes of this case it
   204	does not matter precisely when sovereignty was first asserted.
   206	     20.  The title to the soil of the province became vested in
   207	the Imperial Crown (Great Britain) by operation of law at the
   208	time of sovereignty.  The plaintiffs recognize this title, but
   209	argue that their claims constitute an interest which is a burden
   210	upon the title of the Crown.
   212	     21.  The purpose of sovereignty and of creating the Colony
   213	of British Columbia in 1858 was to settle the colony with British
   214	settlers and to develop it for the benefit of the Crown and its
   215	subjects.
   217	     22.  The aboriginal interests of the post-contact ancestors
   218	of the plaintiffs at the date of sovereignty were those exercised
   219	by their own more remote ancestors for an uncertain long time. 
   220	Basically these were rights to live in their villages and to
   221	occupy adjacent lands for the purpose of gathering the products
   222	of the lands and waters for subsistance and ceremonial purposes.
   224	     23.  These aboriginal interests did not include ownership of
   225	or jurisdiction over the territory.  Those claims of the
   226	plaintiffs are dismissed.
   228	     24.  But for the question of extinguishment, the plaintiff's
   229	aboriginal sustenance rights would have constituted a legally
   230	enforceable, continuing burden upon the title of the Crown.
   232	     25.  Upon the establishment of the colony, the Crown, both
   233	locally and in London, enacted a number of laws providing: (a)
   234	that all the lands of the colony belonged to the Crown (which
   235	would be the Imperial Crown at that time); (b) that the laws of
   236	England applied to the Colony; (c) giving the Governor and later
   237	a Legislative Council authority to grant the lands of the colony
   238	to settlers; and (d) authorizing the Crown through the Governor
   239	to make laws and exercise legal jurisdiction over the colony
   240	including the territory.
   242	     26.  The policy of the Colony of British Columbia was (a) to
   243	allot lands to the Indians for their exclusive use, called
   244	reserves, comprising their village sites, cultivated fields and
   245	immediately adjacent hunting grounds; (b) to encourage settlement
   246	by making and available for agriculture and other purposes; and
   247	(c) to permit Indians, along with all other citizens to use the
   248	vacant Crown lands of the colony.
   250	     27.  Part (a) of this policy did not usually work a well as
   251	intended. Reserves were mainly allotted in the territory in the
   252	1890's and they were "adjusted" by a Royal Commission in
   253	1912-1914.  Although reserves in the territory included most
   254	occupied villages, they were very small because it was thought
   255	secure access to strategic fishing sites was more important than
   256	acreage.  The evidence does not fully explain why the Indians of
   257	the territory did not receive strategic sites <+and+> acreage
   258	except that the Indians often failed or declined to participate
   259	in the allotment process. 
   261	     28.  It is the law that aboriginal rights exits at the
   262	"pleasure of the Crown," and they may be extinguished whenever
   263	the intention of the Crown to do so is clear and plain.
   265	     29.  The pre-Confederation colonial enactments construed in
   266	their historic setting exhibit a clear and plain intention to
   267	extinguish aboriginal interests in order to give an unburdened
   268	title to settlers, and the Crown did extinguish such rights to
   269	all the lands of the colony.  The plaintiffs' claims for
   270	aboriginal rights are accordingly dismissed.
   272	     30.  At the same time, the Crown promised the Indians of the
   273	colony, which applies also to the territory, that they (along
   274	with all other residents), but subject to the general law, could
   275	continue to use the unoccupied or vacant Crown land of the colony
   276	for purposes equivalent to aboriginal rights until such lands
   277	were required for an adverse purpose.  Further, this promise
   278	extends to any alienated lands which are returned to the status
   279	of vacant Crown lands.  Thus, lands leased or licensed for
   280	logging, for example, become usable again by Indians and others
   281	when such operations are completed.
   283	     31.  The unilateral extinguishment of aboriginal interests
   284	accompanied by the Crown's promise and the general obligation of
   285	the Crown to care for its aboriginal peoples created a legally
   286	enforceable fiduciary, or trust-like duty or obligation upon the
   287	Crown to ensure there will be no arbitrary interference with
   288	aboriginal sustenance practices in the territory.
   290	     32.  When the colony joined the Canadian Confederation in
   291	1871 the charge of Indians and Indian lands was assumed by the
   292	Dominion (Canada); all colonial lands, subject to existing
   293	"interests," accrued to the province; and the province agreed to
   294	furnish whatever land was required for reserves.  In 1924 Canada
   295	acknowledged that British Columbia had satisfied its obligations
   296	with respect to furnishing lands for Indian reserves.
   298	      33.  The promise made and obligation assumed by the Crown
   299	in colonial times, while not an "Interest" to which Crown lands
   300	are subject, can only be discharged by the province and continues
   301	to the present time as a duty owed by the Crown subject to the
   302	terms mentioned above.
   304	     34.  Since Confederation the province has had: (a) title to
   305	the soil of the province; (b) the right to dispose of Crown lands
   306	unburdened by aboriginal title; and (c) the right, within its
   307	jurisdiction under s. 92 of the Constitution, to govern the
   308	province.  All titles, leases, licenses, permits and other
   309	dispositions emanating from the Imperial Crown during the
   310	colonial period or from the Crown in right of the province since
   311	Confederation are valid in so far as aboriginal interests are
   312	concerned. The province has a continuing fiduciary duty to permit
   313	Indians to use vacant Crown land for aboriginal purposes.  The
   314	honour of the Crown imposes an obligation of fair dealing in this
   315	respect upon the province which is enforceable by law.
   317	     35.  The plaintiffs, on behalf of the Gitksan and
   318	Wet'suwet'en people are accordingly entitled to a Declaration
   319	confirming their legal rights to use vacant Crown land for
   320	aboriginal purposes subject to the general law of the province.
   322	     36.  The orderly development of the territory including the
   323	settlement and development of non-reserve lands and the
   324	harvesting of resources does not ordinarily offend against the
   325	honour of the Crown.  This is because the province has many other
   326	duties and obligations additional to those owed to Indians and
   327	because (a) the territory is so vast; (b) game and other
   328	resources are reasonably plentiful; and (c) most Indians in the
   329	territory are only marginally dependent upon sustenance
   330	activities.
   332	     37.  The right of Indians to use unoccupied, vacant Crown
   333	land is an not an exclusive right and it is subject to the
   334	general law of the province.  The Crown has always allowed
   335	non-Indians also to use vacant Crown lands.
   337	     38.  For the reasons stated in the Reasons for Judgement, it
   338	is not advisable to specify the precise rules that would govern
   339	the relationship between the Indians and the Crown.  Instead,
   340	that question should be left to the law relating to fiduciary
   341	duties which provides ample legal remedies.
   343	     39.  Part 15 of this judgment describes the circumstances
   344	which the province and the Indians should take into consideration
   345	in deciding whether any proposed Crown action may constitute a
   346	breach of its fiduciary duty to Indians.  Generally speaking, the
   347	operative word is "reconciliation" rather than "rights" or
   348	"justification."
   350	     40.  As the Crown has all along had the right to settle and
   351	develop the territory and to grant titles and tenures in the
   352	territory unburdened by aboriginal interests, the plaintiffs'
   353	claim for damages is dismissed.
   355	     41.  If I have erred on the question of extinguishment, and
   356	the plaintiffs aboriginal interests or any of them are not
   357	extinguished, the evidence does not establish the validity of
   358	individual territories claimed by Gitksan and Wet'suwet'en
   359	Chiefs.  Instead, therefore, the claim for aboriginal rights in
   360	such circumstances would be allowed not for chiefs or Houses or
   361	members of Houses, but rather for the communal benefit of all the
   362	Gitksan and Wet'suwet'en peoples except the Gitksan peoples of
   363	the Kitwancool Chiefs who did not join in this action.
   365	     42.  These aboriginal rights, if any, would attach not to
   366	the whole territory but only to the parts that where used by the
   367	plaintiffs' ancestors at the time of sovereignty.  The parts so
   368	used by each of the plaintiff peoples are defined in Part 16, and
   369	they are shown on Map 5 at p. 281.  [Map unavailable]
   371	     43.  The Counter Claim of the province, which was brought
   372	for procedural reasons, is dismissed.
   374	     44.  Because of the importance of the matter, the divided
   375	success the parties have achieved, and other reasons mentioned in
   376	the judgment, no order is made for costs.
   378	     45.  The specific judgment of the Court is detailed in Part
   379	21. 
   381	     46.  In Part 22 I have made some comments about Indian
   382	matters.
   386	<+PART 21+>
   389	================================================================
   392	     The foregoing answers the legal issues arising for decision
   393	in this case.  It remains only to state my conclusions in more
   394	precise form and to add some comments.  Nothing I have said
   395	applies in any way to any lands set aside as Indian reserves.
   397	     (1)  The action against Canada is dismissed.
   399	     (2)  The plaintiffs' claims for ownership of and
   400	jurisdiction over the territory, and for aboriginal rights in the
   401	territory are dismissed.
   403	     (3)  The plaintiffs, on behalf of the Gitksan and
   404	Wet'suwet'en people described in the Statement of Claim (except
   405	for the Gitksan people of the Houses of the Kitwankool chiefs),
   406	are entitled to a Declaration that, subject to the general law of
   407	the province, they have a continuing legal right to use
   408	unoccupied or vacant Crown land in the territory for aboriginal
   409	sustenance purposes as described in Part 15 of these Reasons for
   410	Judgment.
   412	     (4)  The plaintiffs' claims for damages are dismissed.
   414	     (5)  The Counterclaim of the province is dismissed.
   416	     (6)  In view of all the circumstances of this case,
   417	including the importance of the issues, the variable resources of
   418	the parties, the financial arrangements which have been made for
   419	the conduct of this case (from which I have been largely
   420	insulated), and the divided success each party has achieved,
   421	there will not be any order for costs.
   422				=====================