Rising to the Test: Meeting Lamer’s tests for Aboriginal Rights and Title after Delgamuukw
Brian Thom, Department of Anthropology, McGill University
Paper Presented at the 1999 meeting of the Canadian Anthropology Society, Québec City
The 1997 Delgamuukw decision of the Supreme Court of Canada has been an important moment in determining the nature and extent of Aboriginal rights and title in Canada. This paper critically reviews three lower court decisions made since the Delgamuukw case. These decisions draw on Chief Justice Lamer’s cultural conceptualization of Aboriginal rights, using his tests for establishing the existence of a right, and for the government to justifiably infringe on those rights. I argue how anthropology can provide a challenge to these problematic conceptualizations and offer some ideas for how we as anthropologists might respond to them in future litigation.
This paper is about moving beyond the ‘doom and gloom’ of aboriginal struggles to have their rights and title recognized. This is a hopeful paper about the role anthropologists can play in one of the strategies First Nations communities are taking in asserting their self-determination and defending themselves from infringements on their rights by the Crown. On another level, this paper is an ethnography of a cultural institution - the Canadian system of jurisprudence - and its constructions of culture. How culture is conceptualized and represented becomes a particularly powerful discourse when it is enmeshed in Law.
Since the December 11, 1997 Delgamuukw decision of the Supreme Court of Canada, there have been many court challenges where Aboriginal people have tried to show their vision of culture to argue to argue for their aboriginal rights. These lower court decisions reveal the problematic ‘institutional conceptions’ of culture and the varied ways individuals within this milieu express their own conceptions within this framework. Here I will present three cases which have been argued and decided on since Lamer’s Delgamuukw decision. These cases reveal many of the problems with the vision of culture presented by Lamer in Delgamuukw. A more satisfying approach to the discussion of culture presents possible solutions for future arguments for aboriginal rights and title.
Culture at the lower Courts since Delgamuukw
The Delgamuukw decision has been heralded as a great move forward in clarifying the nature and scope of Aboriginal Title. Aboriginal Title is an important form of Aboriginal Rights, protected by Section 35(1) of the Canadian Constitution Act, 1982, and would give aboriginal communities significant say in what would unfold in their traditional lands. It has established aboriginal title as a sui generis right in land, something between fee simple title and a personal and usufructuary right (Lamer, CJ., Delgamuukw  1 C.N.L.R., 57). Aboriginal title is inalienable, except to the Crown (ibid., 58). Aboriginal title has its legal source in prior occupation of the land (ibid., 58). Aboriginal title is held communally, not by any one member of an Aboriginal Nation (ibid., 59).
As we all know, in many parts of Canada, Aboriginal title has been extinguished through the signing of historic treaties. But in some parts of Canada, particularly in British Columbia, treaties have not until recently been signed, making Aboriginal Title an outstanding issue. The BC Treaty Commission formed in 1993 which finally brought the Federal and Provincial governments to the negotiating table together with First Nations who wish to settle the question of outstanding aboriginal title and rights. The treaty process is slow. Aboriginal leaders are trying to have a meaningful say in the kinds of logging, fishing, mining, and urban development that is going on in their territories. At times, challenges to these developments gain the attention of a wide public - we can recall the massive protests over Meares Island and Clayoquot Sound which unfolded in Nuu-chal-nulth communities. These kinds of disputes continue to unfold unnoticed by the general public.
On the 11th of February this year, the Taku River Tlingit First Nation filed for an interim injunction to halt the reopening of a mine in the Take River watershed. The mining company plans to construct a 160km access road to the mine through the furthest Northwest corner of BC. The Tlingit argued that they have Aboriginal Title over this area, as indicated in the Statement of Intent filed with the BC Treaty Commission, and significant unextinguished aboriginal rights. They stated that the development of the mining project would be an ‘unjustified infringement’ on their aboriginal title and rights. The mining firm and the Provincial Government agued that such an injunction against the development would require proof of Aboriginal title before the injunction could be granted. In determining the outcome of the injunction application, Judge Kirkpatrick cited Lamer’s Delgamuukw decision to state how complex a matter of fact and law it is to establish claims to aboriginal title and rights. He ruled that the Tlingit’s affidavit that the area defined in the Statement of Intent was not sufficient to establish the possibility of those rights existing. Kirkpatrick sent the question to trial without an injunction, a process that will begin in June. The Taku River Tlingit must watch this spring as road crews begin to prepare the long network of roads through their lands. They must wait for the courts to begin the discovery of their evidence - a process which, for the Gitksan-Wet’suwet’en, took three years.
I present this very recent case to raise an important concern about the vision of culture presented by Lamer in Delgamuukw which is now being handled by the lower courts. Lamer defined a ‘traditional territory’ as an entity who’s existence is subject to the tests he laid out. Aboriginal people’s real, immediate interests in land are ignored. Aboriginal leaders have clarified their communities’ relationships to land by the broad maps drawn to define their statement of intent to negotiate treaties. Of course, these maps do not reveal the complexity of the indigenous common law which form the basis of their title. They do not reflect changing historical relations to land, movements and depopulation. They do, however, reflect the real interest in land that Aboriginal communities have today. They are the products of vital interests in title of contemporary Native political organizations (Sterrit et al 1998). On the other hand, the kinds of relationships to land Lamer’s Delgamuukw seeks are highly complex, not easily defined or codified even through years of research and documentation. If the courts are going to be serious about requiring extensive ‘proof’ of this relationship (such proof which is not even required by the Provincial government at the negotiating table), then they need keep the rapid pace of resource extraction and urban development at bay. I would like to raise the question of how anthropologists could make these issues more clear. I think to start with, we should examine the foundations of these statement of interests and explore the social processes which connect contemporary Native communities to their territory. These are political processes. It takes commitment to a community and an on-the-ground sensitivity to the politics at play. Anthropologists are faced with difficult moral and ethical decisions when engaging this work - but the results as shown by the kind of work produced by Sterritt, can be very useful.
Almost a year ago, further down the Coast in Tsimshian traditional territory, International Forest Products began to harvest timber in the Kumealon watershed. The Ministry of Forests notified the Tsimshian Tribal Council, an umbrella organization for the bands in the area, and the Lax Kw’alaams, one of the Tribal Council member bands, as their mandate to consult requires them to do. The Tribal Council and the Lax Kw’alaams didn’t raise any concerns about the application, one of many Timber Harvesting Licences in the territory. In the regular course of preparing cut blocks for harvest, an archaeological inventory of the area around the lake was conducted. The archaeologists hired by Interfor documented several culturally modified trees (CMTs) in the area. Interfor applied to the Archaeology Branch in Victoria for a Site Alteration Permit. They argued that leaving the trees standing would create a safety hazard, and that the year the trees were culturally modified could be determined once the tree was cut down - satisfying public interest and scientific objectives. The Kitkatla Band, one of the members of the Tsimshian Tribal Council, on learning of the CMTs and the plans to log the watershed near their community, filed to the Supreme Court of BC for an injunction. Like the Taku River Tlingit, they argued that logging would unjustly infringe on their (1) unextinguished title, (2) aboriginal rights and (3) interest in the heritage resources in the area (the CMTs). They argued that the few CMTs, found by the logging company, are evidence of their Aboriginal Title and that they were never consulted. Although an initial temporary injunction was granted by Judge Hutchenson, on appeal Judge Donald rejected the application saying forestry work could proceed until trial. To support this, Donald noted that consultation had been made with the Tsimshian Tribal Council (which represents the Kitkatla Band) and the Lax Kw’alaams First Nation, both of whom failed to raise concerns over the area beyond the normal process of the Heritage Act.
This second case raises several concerns about the notion of ‘culture’ which is used building on the Delgamuukw case. Like the Taku River case, the Kitkatla were not given an opportunity to define for themselves the territories which are significance to them. Unlike Taku River, this aspect alone did not determine the case. In the process of ruling on a petition for an injunction, several legal factors were weighed, the most crucial being the test of the ‘balance of convenience’. In this test, the judge needed to consider if there would be irreparable harm done to either party by his decision. The Kitkatla argued that harvesting the CMTs would cause irreparable harm because once cut, the CMTs would be gone from the territory forever. The judge countered, saying that “the agreement with the Lax Kw’alaams concerning archaeological discoveries of CMT’s is an important indication that others in the Tsimshain Nation do not feel the irreparable harm that the Kitkatla express” (Donald  para. 46). Lamer’s Delgamuukw told the judges that they must consider the perspectives of the Aboriginal peoples themselves, but in deciding cases where closely related communities have different perspectives, this judge was left to make his own evaluation of the significance of the culture (CMTs) at stake.
The judges had some additional guidance in this case by the example set of Meares Island where logging was halted on the account of, among other things, the CMTs in evidence there. However, on the question of the ‘balance of convenience’, the Meares island case was constructed by the judge as being highly ‘special’, because of the number of different interveners and the symbolic importance the island had taken on for the wider public. With the Kitkatla case, no such broad symbolic significance was granted by the judge. In fact, during the short archaeological reconnaissance, only a few CMTs were documented (compared to the 1500+ documented on Meares Island). The weighing of symbolic importance becomes a key element of these cases. However, the degree of symbolic attachment to land is seen by judges as having to be VERY great in order give this factor legal weight. Again it is their measurement which becomes powerful.
Anthropologists must present adequate evidence to contextualize the contemporary symbolic importance of land and cultural symbols to native communities. We need to explore the differences in value and make clear the complex, shifting relationships aboriginal people have with their land today. In taking numbers of CMTs into account for significance, a western notion of ‘bigger/more is better’ or ‘special’ is imbued with the power of the law. A few CMTs is not significant for the courts as a symbol to the whole watershed. Nor are they necessarily to native communities, in and of themselves. But as evidence of their heritage and ultimately of Aboriginal Title, they become highly significant. Obtaining injunctions against logging become important to Aboriginal peoples notion of their unsettled title, as who wants title over a logged-out watershed?
The Narrowing of the Tests
The Delgamuukw decision built on previous rulings by the Supreme Court in establishing this legal definition of Aboriginal rights and title. The Supreme Court has established an ever-changing range of ‘tests’ that aboriginal claimants must show to demonstrate their aboriginal rights. Central to these tests since the Supreme Court’s 1985 Sparrow decision, is that the claimed right must have constituted an integral part of the distinctive culture of the Native people making the claim. Continuity must be shown between the group claiming the right or title and their ancestors at the time of contact or sovereignty. Legal scholar Catherine Bell has traced (Bell 1998:54) how these tests for rights have been reinterpreted more and more narrowly since Sparrow. Lamer’s 1996 decision in Van der Peet argued that rights must be shown to be integral to specific activities of their culture: the Stó:lô could demonstrate salmon subsistence fishing but not salmon commercial fishing. In his Pamajewon decision later that year, Lamer narrowed this further, requiring the specific manner of activity to be shown to be integral to the distinctive culture - in this case Ojibway couldn’t claim high-stakes gambling as an Aboriginal right of self-government. The lower courts have drawn on these narrow interpretations in applying the Supreme Courts tests.
Down on the southeast corner of Vancouver Island, three Penelakut hunters charged with hunting with lights at night faced this ‘integral to distinctive culture’ test. Their defence was that the Provincial regulations banning torch-hunting denied them their preferred means of hunting. Anthropologist Wayne Suttles testified that Coast Salish hunters have long used torches at night to aid them in hunting game, supporting his testimony with historical descriptions of hunting and his own ethnographic work. This evidence was convincing to Judge Higinbotham, who upheld practice of hunting with torches as their preferred means of exercising their Aboriginal right to hunt (Higinbotham J., Seward  1 C.N.L.R. 139). This was, on appeal, characterized as “academic speculation” by Justice Thackray, and charges were allowed to stand (Thackray, J. Seaward  3 C.N.L.R. 254).
In his ruling Judge Thackray recalled the ‘facts’ of the lives of the individual hunters to put into question to importance of this manner of hunting. He noted that Mr. Thomas “had been taught how to hunt by his father and grandfather. They had taken him hunting, but only in the daytime... Mr. Seward had been taught to hunt by his grandfather and uncles. They had never taken him hunting at night” (ibid., 239). Clearly this is a response to a preconception that night hunting, if even done traditionally, was a long-dead practice, not ‘integral’ to the nature of the right to hunt. This characterization of the life history of the Penelakut hunters fit a more general cultural stereotype of ‘lazy Indians’ trying to ‘get away with’ night hunting by claiming an Aboriginal right.
By accepting the notion that some cultural trait can be seen as being so critical (or integral) to the society that without it, the culture would be “fundamentally altered or other than what it is” (Zalweski 1997:444) the courts create a very compartmentalized notion of culture . Continuing to conceive of practices which are ‘integral’ to a distinctive culture has the “potential to reinforce stereotypes about Indians” in order to determine what is integral to Aboriginal societies (Borrows 1998:43, note 40). These stereotypes are, as legal scholar John Borrows states, “steeped in questionable North American cultural images” (ibid.). Indeed, Judge Thackray’s ruling in Seward is so steeped. Borrows has also critiqued this test for relying too much on “pre-contact practices [and] restricts contemporary Aboriginal development” (Borrows 1998:49). Night hunting is the re-vival of an old practice in a highly altered socio-economic context. Ethnohistory and ethnography attuned to social and symbolic relationships has long provided this kind of research and should be encouraged in all First Nations communities. First Nations groups which have not had the benefit of careful historical study risk being less able to make these claims in court.
Infringement and Consultation
In his final analysis, Lamer’s Delgamuukw decision attempts to balance Aboriginal rights and title with competing political and economic interests. He does this by granting provincial or federal governments the power to infringe on these rights if the infringement satisfies a compelling legislative objective. He includes as examples of this the “development of agriculture, forestry, mining, hydroelectric power, ... general economic development, ...the protection of the environment or endangered species, the building of infrastructure, and so on (Lamer, CJ., Delgamuukw  1 C.N.L.R. p.78). The Crown may infringe on an Aboriginal right if it can satisfy the three-part justification test by (1) ensuring there is as little infringement as possible (which means ensuring that it does not cause undue hardship and does not deny Aboriginal people their preferred means of exercising their right); (2) making fair compensation available; (3) ensuring the Aboriginal group has been consulted. This ability to justify an infringement on Aboriginal rights and title has been characterized as a ‘downgrading’ of rights to compensate for looser evidentiary rules and broader definitions of rights and title than had been conceived of in the past (Borrows 1998:58).
Returning to the three cases on the Northwest Coast, it is clear that the Delgamuukw decision, empowered by the strength of the Canadian legal system, but stagnated by problematic and uncritical notions of culture, does not give First Nations sufficient leverage to make the balance equal.
The Taku River Tlingit have been involved in the consultation process defined by the Provincial Environmental Assessment Act. Their interest as First Nations parties in the consultation process was defined by their statement of intent to the BC Treaty Commission. So far, these assertions of Aboriginal Title are meaningful as far as the ‘consultation’ engaged in has no real bearing on the outcome of the development proposal. When the Tlingit challenged to the development through their injunction application the Province made it abundantly clear that it does not “...concede or accept that the Tlingits have title or rights over the whole of the territory claimed and that the Tlingits’ claims in that regard will be vigorously challenged” . At what point can we say that the consultations that the Province is making since Delgamuukw are either in good faith or serious at all? This is consistent with the experiences of First Nations communities throughout Canada, who as Peter Usher has pointed out, have had consultation “... about major projects [which] consisted of government and industry arriving together at meetings to announce their plans, and to suggest how people could accommodate themselves to these” (Usher 1993:102).
In the injunction application made by the Kitkatla against logging, both the Province and the courts emphasized the differences in the positions of the different Native political organizations concerned. In dismissing the application, Judge Hutchison said that this is a problem of ‘overlap’. Judge Hutchison resolved that the individuals bands must be subordinate to their Tribal Council umbrella organization, citing the Framework Agreement from the treaty process as an authority on political organizati0n. This is as shallow as saying the Provinces must be subordinate to the Federal government in areas where jurisdiction has not been made explicit or finalized. How the judge could rule in favour of one position over the other is left to his own values of what a Native political organization should be. The reconciliation of power between Tribal Council organizations and local communities is a common issue, one that is being worked out by the communities themselves. In ruling that the “court should be slow to accept the submissions of one band when it is not joined in by its umbrella organization” (Hutchison  para. 51), the courts are presupposing the fundamental relations Native communities have internally, based on a hierarchical model of political organization that recognizes neither traditional aboriginal political structures, nor the self-governing institutions First Nations themselves are trying to establish. Political organization has long been a topic of study for anthropology, but the study of contemporary processes has often fallen in the shadows of the ‘classic’ anthropological debates over social inequality and political complexity.
The Penelakut hunters who defended their rights to torch-light hunt were saddled with the burden of proof to show that the regulations against night hunting were an infringement which caused ‘undue hardship’. Though the defendants were not explicitly asked to satisfy the burden of proof (the trial was heard before the Delgamuukw decision was handed down), Appeal Court Judge Thackray drew from the cross-examination testimony to decide himself if there was undue hardship. The hunters testified that the deer meat was to be used in a burning ceremony - a common and important ceremony in Coast Salish communities. Thackray paid special note to their statements that the burning ceremony would have gone on anyway with or without the deer meat. When the defendants said that they were hunting because their father said he needed meat for the burning, they were talking about important social obligations which needed to be met under difficult circumstances of time and shortage of money, where the value of completing the action was far greater than the result of the action itself. Judge Thackray took the burnings to be static, prescribed rituals where deer meat was not an essential part. He failed to recognize the social importance of the participation in the ceremony which. This raises the long-discussed issue in anthropology of the distance between the discourses of people from two societies (ie: Ridington 1990). Even the relatively straight forward statements of the Mr. Thomas, the defendant being cross-examined, were imbued with meaning and importance the appeal judge failed to see. Clearly the Penelakut felt the hardship if they took it to court. Anthropological analysis of contemporary ritual and social obligations might help bridge this gap.
Lamer’s Delgamuukw has put mainstream values as paramount in these considerations, as the Taku River, Hill and Seward cases all show. It is possible that this is just the problem of a reluctant lower court system in BC, loath to shed the colonial history of the Province.
The recent decisions of the Supreme Court of Canada have made a significant but narrow opening from which Aboriginal rights and title can be integrated within Canadian society at large. To keep the opening wide, Aboriginal leaders keep their lawyers, and their anthropologists, close at hand. Anthropology needs to continue to be engaged in conversations over claims for aboriginal rights. Anthropologists should facilitate critical discussions about the issue of overlapping claims. There should be dialogue between anthropologists, foresters, aboriginal groups and governments over the significance of the land as part of the process of consultation over Aboriginal rights. The traditional use studies in BC, if controlled by First Nations, may be an avenue for this. Anthropologists should continue to make close studies of contemporary communities, describing and theorizing about political organization, indigenous common law, ritual, social and economic processes. We should continue to provide a critique of the ethnocentric biases of the institutions on Canadian institutions. Much of this work needs to be done before these cases ever hit the court rooms.
Bell, Catherine (1998) “New Directions in the Law of Aboriginal Rights” The Canadian Bar Review 77:36-72.
Borrows, John (1998) “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” American Indian Law Review 22(1):37-64.
Ridington, Robin (1990) “Cultures in Conflict: The Problem of Discourse” Canadian Literature 124/5:273-289.
Sterritt, Neil, Susan Marsden, Robert Galois, Peter Grant and Richard Overstall (1998) Tribal Boundaries in the Nass Watershed. UBC Press, Vancouver.
Usher, Peter (1993) “Northern Development, Impact Assessment, and Social Change”, in Anthropology, Public Policy and Native Peoples in Canada, edited by Noel Dyck and James B. Waldram. McGill-Queen’s University Press, Montreal.
Zalewski, Anna (1997) :From Sparrow to Van der Peet: The Evolution of a Definition of Aboriginal Rights” University of Toronto Faculty of Law Review. 55(2):435-455.
Table of Cases
R. v. Sparrow , 1 S.C.R. 335.
R. v. Pamajewon  4 C.N.L.R. 164 (S.C.C.), aff’g  2 C.N.L.R. 118 (Ont. C.A.), which aff’d  3 C.N.L.R. 209 (Ont. Prov. Ct.).
R. v. Van der Peet  4 C.N.L.R. 177 (S.C.C.), aff’g  4 C.N.L.R. 221 (B.C.C.A.), which rev’d  3 C.N.L.R. 161 (B.C.S.C.), which rev’d  3 C.N.L.R. 155 (B.C. Prov. Ct.).
R. v. Seward et al  3 C.N.L.R. 237, rev’g  1 C.N.L.R. 139 (B.C. Prov. Ct.).
R. v. Delgamuukw  1 C.N.L.R. 14 (S.C.C.), rev’g  5 C.N.L.R. 1 (B.C.C.A.), which rev’g  5 C.N.L.R. 1 (B.C.S.C.).
Taku River Tlingit First Nation v. Ringstand, et al , Docket A990300, Vancouver Registry.
Hill v. R. , Docket 982171, Victoria Registry, aff’g Docket 98-2223, Victoria Registry, aff’g Docket 98-4389, Victoria Registry, aff’g  B.C.C.A. 61.