December 12, 2007
On December 11, 1997, the Supreme Court of Canada handed down its landmark decision in Delgamuukw v The Queen. To mark this week's ten-year anniversary, TheCourt.ca commissioned a pair of pieces from two of the lawyers involved in the case.
On Monday, Peter R. Grant, lead counsel for the Gitxsan and Wet'suwet'en chiefs, described Delgamuukw's legal legacy. Today, Bryan Williams, lead counsel for the Province of British Columbia at the Court of Appeal (and later Chief Justice of the B.C. Supreme Court), provides an insider's account of the events leading up to the Supreme Court ruling.
Delgamuukw v The Queen, [1997] 3 SCR 1010 [Delgamuukw] is certainly the most fascinating case I had the privilege of arguing in my entire career as a counsel.
In the years leading up to Delgamuukw, I had done a fair amount of aboriginal work as counsel to several nations of native people. I was asked by the Attorney General and Premier of British Columbia to act as lead counsel for the province in the Delgamuukw appeal. Lead counsel at the trial for the Province of British Columbia was D.M.M. Goldie, and the judge was the then-Chief Justice of the Supreme Court of British Columbia, Alan MacEachern.
The trial judgment, which is 394 pages in length, deals with a great deal of history and the concept of aboriginal title. The judgment, however, determined that the plaintiffs’ aboriginal right would have constituted a legally enforceable continuing burden upon the title of the Crown were it not for extinguishment. In his summary, the Chief Justice remarked that:
The pre-confederation colonial enactments construed in their historic setting exhibit a clear and plain intention to extinguish aboriginal interests in order to give an unburdened title to settlers and the Crown did extinguish such rights to all the lands of the colony. The plaintiffs’ claims for aboriginal rights are accordingly dismissed.
When the appeal was launched by Delgamuukw, I was approached by the then-Premier and Attorney General, who sought my opinion of the trial judgment. I indicated that, with the greatest of deference, I disagreed with the Chief Justice. Aboriginal rights like other rights, I explained, could not be impliedly extinguished but had to be expressly extinguished to be effective. I was advised by the government that they did not agree with the trial judgment either, and accordingly, they retained me to defend the Crown’s position in the appeal, but to argue that extinguishment had not taken place.
I approached three of Canada’s leading counsel to ask whether the Government of the Province of British Columbia could argue that its trial-court victory on extinguishment issue should be ignored. I determined after those conversations that if the government wished to change its mind, and if I as counsel could give an opinion that Confederation had not effectively extinguished aboriginal rights, then we could go forward with the case. That we did.
At the opening of the appeal, I advised the court sitting in a panel of five judges, that the Crown did not wish to argue that the Chief Justice had been correct. Rather, it wished to argue that extinguishment had not taken place. Having taken that position, I sought instructions from the Attorney General, who agreed that the court should appoint an amicus curii to argue the position reached by the Chief Justice at trial, so that all aspects would be before the court. The court upon that offer appointed the firm that had represented the Crown at trial as amicus curii in the appeal.
The Court of Appeal was asked to deal with issues and positions far too numerous to mention in this short summary. Only a careful reading of the Court of Appeal judgment could do justice to those issues and how they impacted upon the Crown and the Gitksan and Wet’suwet’en.
There was of course much discussion about the lands involved and what was necessary to prove that aboriginal title did exist in certain lands within the claim area of the Gitksan and Wet’suwet’en. Some lands were village sites, some were fishing sites, some were hunting and gathering areas and some of the land was barely if ever used for any purpose. Nonetheless, the entire area was claimed by the Gitksan and Wet’suwet’en chiefs. In the end, it was clear to the court that there was insufficient evidence to establish which parcels of land were covered by aboriginal title, and which parcels were therefore the subject of unextinguished rights.
There was also a contest between public lands and privately owned lands. This was a complex issue, since the Crown exercising sovereignty had supposedly granted exclusive rights to settlers and other land purchasers in British Columbia. The appeal court did deal with this issue but held that both titles could apply. Thus, while the Crown had a right under the sovereignty banner to issue title to land, that land was still burdened by aboriginal title. In my view, the intricacies of that issue have still not been analytically resolved.
Another interesting issue was the use of oral evidence. Could the court rely upon what has always been referred to as hearsay evidence, passed down from one generation to another, to establish title? That issue was dealt with by the Court of Appeal, and ultimately, in the Supreme Court of Canada, resolved in favour of the appellants.
The Court of Appeal was not unanimous on a number of issues, however. Once again, the differences could only be properly understood by a careful reading of the judgment. In any event, since the Court of Appeal had decided that aboriginal title had not been extinguished by Confederation, Delgamuukw proceeded to the Supreme Court of Canada.
I acted as counsel in the Supreme Court of Canada and represented the Crown on the first motion before the Supreme Court. However, shortly thereafter, I was appointed to the Court of Appeal of British Columbia. I therefore turned over the case to my very competent and capable associate counsel, Joe Arvay, who carried the case through the Supreme Court.
1 Comment
During the last four years, while researching and writing on Aboriginal rights in Rupert's Land (and B.C.) I have been amazed by the extent to which Canadian courts have ignored long established common law, especially on evidence and fact finding while deciding Aboriginal cases.
Character Evidence:
Supposedly, character evidence has been barred since the early 1800s in Canadian and English courts, yet as recently as this year, even the Supreme Court of Canada has allowed use of the term 'nomad', clearly a discreditable term, without support of similar fact evidence that a 'nomad' stereotype ever existed anywhere on earth, in fact. Nor have Canadian courts required admissible evidence to prove that, beyond coincidence, the behaviour of a particular Aboriginal band, community or family has demonstrated a lack of legal, customary or social organization in order to be described as 'nomadic'. The common law that Aboriginal people lack the legal attributes to create such legal rights as ownership of property, self-government can be traced to Locke and Vattel's theories, adopted by Marshal for the US Supreme Court and by the Supreme Court of Canada in St Catharines Milling. Supposedly, terra nullius, common law on nomads was rejected by Mabo and then by Delgamuukw; however, the term nomad is allowed in spite of a long standing bar on character evidence and the criteria for similar fact exception unwaveringly maintained in non-Aboriginal actions where character evidence is an issue.
Expert and Hearsay Evidence:
The Crown has since shortly before Delgamuukw maintained an 'Indian fighter' department of allegedly qualified experts to bolster the notion that Aboriginal testimony, because it is mainly oral, is unreliable. This contradicts the principle found in Maldinado v. Canada 1980 and applied more than a 120 times (last count) since 1990, that oral evidence of a witness may only be challenged with skepticism that can be justified with factual evidence, otherwise such evidence must be accepted at face value. The experts, for the most part lack the factual foundations for their opinions (R. v. Abbey, R. v. Mohan), relying entirely on scholarly writings to the exclusion of any personal experience with the subject Aboriginals. Scholarly writings have been accepted through judicial notice (eg. St Catharines Milling 1887; R. v. Wesley 1975) even though there is conflicting or no evidence presented as to their general acceptance. Nor has there been much effort through court appointed witnesses or peer reviews to assure that such experts are even regarded as experts by their own colleagues. What has been especially damaging for Aboriginal people is that this character evidence has been used to bolster the ward status of Aboriginal people, declared by a Canadian executive but never pronounced as legally justified, based on admissible evidence, by a Canadian court. For non-Aboriginals, Canadian courts have not wavered in maintaining such English law traditions as judicial independence or the separation of executive, legislative and judicial powers.
Ignoring Existing Common Law:
Connolly v. Woolrich 1867; upheld on appeal by a Quebec Court of Appeal and whose judgment reasons were used by the Judicial Committee of the Privy Council to resolve a Canada-Ontario-Quebec boundary dispute in 1895 have been completely ignored in Delgamuukw. Connolly v. Woolrich, based on admissible and n exhaustive evidence held that Aboriginals do have laws and legal rights such as property, self-government, etc. which in 1867 neither Britain nor France had altered.
Ignoring Royal Proclamations:
Although the Royal Proclamation of 1763 was couched in general terms, the Royal Proclamation of December 6, 1869 issued by the British Cabinet in the fashion prescribed by the Statute of Proclamations has been completely suppressed by the Canadian Crown. Its historical existence was acknowledged by Jack Bumsted, a history prof at the University of Manitoba; however its contents and especially legal import have been completely overlooked. According to sworn testimony of John A. Macdonald published in 1874, this proclamation was translated into French, English and Cree for distribution in Rupert's Land, as a Royal Proclamation and an order in council of British Cabinet. That it was proclaimed six months before the Rupert's Land & North Western Territory Order, according to Campbell v. Hall 1774, means that this proclamation provides authoritative definition to the Rupert's Land & North Western Territory Order and as a result, the Canadian Constitution's definition of Aboriginal rights in not only Rupert's Land, but BC as well.
I believe the main reason that I am uniquely sensitive to these shortcomings is that I have lived my entire adult life under the customary legal system of the Crees of Waskaganish First Nation. The notion that the latter system is nonexistant, archaic or could not be presented as fact, is naturally ridiculous to me.