May 6, 1991
Enclosed for your information is a copy of an editorial on the
recent Gitksan-Wet'suwet'en decision originally published in the
Lethbridge Herald and then reprinted in the Windspeaker.
re-printed without permission from the Windspeaker, April 12, 1991
WHITE MAN'S LAW
The Canadian Bar Association's 1988 review of aboriginal rights in
Canada said aboriginal people are seriously disadvantaged when
trying to assert their rights in the courtroom. The reason is
simple the report states: "They are effectively asking the courts
to overturn 100 years of legal precedent that involved an entirely
different view of Canadian history," during which they weren't
allowed to participate in the legal process.
The recent decision of B.C. Chief Justice Allan McEachern regarding
the Gitksan-Wet'suwet'en land claim proves the accuracy of the bar
association's statement better than any earlier decision.
The Gitksan-Wet'suwet'en people claimed jurisdiction, ownership and
control of about 20,000 square miles in central B.C. Because few
treaties were ever signed in that province, Indian tribes believe
they have never relinquished title to their historic homelands.
Therefore, the Gitksan-Wet'suwet'en argue, the federal and B.C.
governments must negotiate with them, and compensate them, if
Canadians are to use that part of the province...
But Justice McEachern decided the Gitksan-Wet'suwet'en do not own
the land after all. Their aboriginal rights have been superseded
by law, he said. That term means aboriginal rights exist at the
pleasure of the Crown, can be extinguished by the Crown and were
extinguished by various pre-Confederation proclamations and
ordinances issued by the governor of B.C.
Georges Erasmus, national chief of the Assembly of First Nations,
describes the doctrine, "superseded by law", as tantamount to
declaring an act of trespass in a person's house gives the
trespasser rights over that property...
Aboriginal peoples are not the only ones with complaints about that
particular doctrine. A 1985 federal task force review of
comprehensive claims policy, established by former Indian Affairs
minister David Crombie, said "the proposition aboriginal title can
be implicitly superseded by law lacks a solid legal basis." The
earlier-mentioned bar association review agrees with that view. It
asks the federal government to either drop it or substantiate it.
Unfortunately, because the federal land-claims policy is so badly
flawed, the Gitksan-Wet'suwet'en were forced into court and because
this peculiar doctrine was allowed to stand, Justice McEachern
applied "white man's law", as he called it. The cost to the
Gitksan-Wet'suwet'en to be told the trespassers gave themselves the
key? About $20 million...
At the very least, they are likely to appeal Justice McEachern's
decision. At the worst, they may choose a less peaceful course
that demonstrates the kind of frustration being felt in aboriginal
communities all over the country.
--- FD 1.99c
* Origin: Lubicon News Station: Edmonton, Alberta Canada (89:682/432)
--
Terri Kelly - via IMEx node 89:681/1
Terri.Kelly@f432.n682.z89.onebdos.UUCP