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
Abstract
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.
Introduction
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 [1998] 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 [1998] 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 [1997] 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
[1998] 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 [1998] 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” [27]. 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
[1998] 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.
Conclusions
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.
Bibliography
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Table of Cases
R. v. Sparrow [1990], 1 S.C.R. 335.
R. v. Pamajewon [1996] 4 C.N.L.R. 164 (S.C.C.), aff’g
[1995] 2 C.N.L.R. 118 (Ont. C.A.), which aff’d [1993]
3 C.N.L.R. 209 (Ont. Prov. Ct.).
R. v. Van der Peet [1996] 4 C.N.L.R. 177 (S.C.C.), aff’g
[1993] 4 C.N.L.R. 221 (B.C.C.A.), which rev’d [1991]
3 C.N.L.R. 161 (B.C.S.C.), which rev’d [1991] 3
C.N.L.R. 155 (B.C. Prov. Ct.).
R. v. Seward
et al [1998] 3 C.N.L.R. 237, rev’g [1997] 1 C.N.L.R. 139 (B.C. Prov.
Ct.).
R. v. Delgamuukw [1998]
1 C.N.L.R. 14 (S.C.C.), rev’g [1993] 5 C.N.L.R. 1
(B.C.C.A.), which rev’g [1991] 5 C.N.L.R. 1
(B.C.S.C.).
Taku River Tlingit First Nation
v. Ringstand, et al [1999], Docket A990300, Vancouver Registry.
Hill v. R. [1998], Docket 982171, Victoria Registry, aff’g Docket 98-2223, Victoria Registry, aff’g Docket 98-4389, Victoria Registry, aff’g [1999] B.C.C.A. 61.