1 September 1993
2
3
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
8
9 ================================
10
11 No. 0843
12 Smithers Registry
13
14
15
16 In the Supreme Court of British Columbia
17
18
19
20
21 Between:
22
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
26
27 Plaintiffs
28
29
30 And:
31
32 HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE
33 OF BRITISH COLUMBIA and THE ATTORNEY GENERAL
34 OF CANADA
35
36 Defendants
37
38
39 Reasons for Judgment of The Honorable Chief Justice Allan
40 McEachern.
41
42 Dates of Trial: 374 Days between May 11, 1987 and June 30, 1990
43
44 Counsel:
45
46 Stuart Rush, Peter Grant, Louise Mandell, Michael Jackson, Murray
47 Adams, Stanley Gunther, Leslie Pinder, Michael Fleming and David
48 Paterson for Plaintiffs
49
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
53
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
57
58 Date: Friday, March 8, 1991
59
60
61 <+SUMMARY OF FINDINGS AND CONCLUSIONS+>
62 =================================================================
63
64
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.
68
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.
72
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.
79
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:
87
88 (a) that they own the territory;
89
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;
94
95 (c) alternatively, that they have
96 unspecified aboriginal rights to
97 use the territory;
98
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
104
105 (e) costs.
106
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.
113
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.
120
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]
128
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+>.
133
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.
140
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.
144
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.
149
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.
163
164 13. [Paragraphs misnumbered in the original. No paragraph
165 13.]
166
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.
172
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.
181
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.
186
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.
195
196 18. The law of nations and the common law recognize the
197 sovereignty of European nations which established settlements in
198 North America.
199
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.
205
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.
211
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.
216
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.
223
224 23. These aboriginal interests did not include ownership of
225 or jurisdiction over the territory. Those claims of the
226 plaintiffs are dismissed.
227
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.
231
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.
241
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.
249
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.
260
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.
264
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.
271
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.
282
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.
289
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.
297
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.
303
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.
316
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.
321
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.
331
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.
336
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.
342
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."
349
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.
354
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.
364
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]
370
371 43. The Counter Claim of the province, which was brought
372 for procedural reasons, is dismissed.
373
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.
377
378 45. The specific judgment of the Court is detailed in Part
379 21.
380
381 46. In Part 22 I have made some comments about Indian
382 matters.
383
384
385
386 <+PART 21+>
387
388 <+THE JUDGMENT IN THIS CASE+>
389 ================================================================
390
391
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.
396
397 (1) The action against Canada is dismissed.
398
399 (2) The plaintiffs' claims for ownership of and
400 jurisdiction over the territory, and for aboriginal rights in the
401 territory are dismissed.
402
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.
411
412 (4) The plaintiffs' claims for damages are dismissed.
413
414 (5) The Counterclaim of the province is dismissed.
415
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 =====================