Delgamuukw
What does it really mean for British Columbia?
Release Date: 30 March 1998
VANCOUVER, BC>>> British Columbia is facing a crisis unlike anything it has faced in its 127 years within Canadian Confederation, according to Mel Smith, Q.C., former constitutional advisor to four successive B.C. governments, referring to the Supreme Court of Canada decision in the landmark case of Delgamuukw vs. British Columbia.
In his provocative paper, released today by the Fraser Institute, Smith describes the Delgamuukw decision "as one of the most audacious acts of judicial engineering in our history." The Delgamuukw Case: What Does it Mean and What Do We Do Now? is the clearest analysis of the case's history, its pitfalls, and the likely injurious fallout of the Supreme Court's 11 December 1997 decision. Smith also offers a statutory remedy as a way to resolve the crisis.
According to Smith, the Supreme Court has developed a concept of aboriginal title that has turned on its head previous judicial ruling on the subject. What was considered up to now to be a non-exclusive user right to pursue traditional activities over land for sustenance purposes -- hunting, trapping, and gathering -- has now been elevated to an exclusive ownership right, virtually equivalent in many cases to fee simple ownership.
Specifically, Smith states that the decision has:
l drastically undermined Crown ownership of 94 percent of B.C.'s land mass
l put almost insurmountable hurdles in the way of the provincial government over present and future land resource decisions
l supplanted the common law with a new system of law in which equal credence is to be given in aboriginal cases to the "aboriginal perspective"
l replaced the long-established rules of evidence in civil cases with two sets of rules -- one for aboriginal cases only
l found that aboriginal title, as defined by the Court, may be supplanted by other forms of land tenure only if rigid tests are met by the government and, only then, if compensation is paid
l failed to confirm that, in constitutional terms, the right to make laws in this country is fully vested in either Parliament or provincial legislatures
l turned over to the federal government the right to exclusively legislate land management for "Indians" on lands found to be covered by aboriginal title.
Smith concludes that the treaty-making process in B.C., as it is presently constituted, should be suspended and replaced with a legislative solution -- a course of action which is being followed with success in Australia. He proposes a federal statute that would:
l declare that the granting of any land tenure by the provincial government (grants, timber licenses, mineral leases, agricultural leases, grazing permits, rights of way, and so on) -- whether past, present, or future -- shall have the effect of lawfully infringing upon any aboriginal title over the land area covered by the tenure
l allow aboriginal title, if it can be proved in specific cases, to continue to exist over untenured Crown land, but only so long as the land remains untenured
l establish a statutory regime to provide fair compensation to any aboriginal group that can establish the loss of aboriginal title over any land included in any land tenure, based on a graduating scale of compensation governed by the nature and extent of the aboriginal interest infringed upon
l establish a duly qualified special tribunal composed of judges, former judges, or people having special knowledge in relation to land management and land assessment, to settle the measure of compensation after a full hearing based on the statutory criteria.
"We in Canada should embark upon this more rational approach to dealing with this difficult problem," added Smith. "The native leadership will resist the process because they are not used to having their views overridden. But they must be reminded that public support for the land claims process is very much on the wane. We must deal fairly, but it must be done in a balanced way, and this is a matter for governments to decide."
Established in 1974, The Fraser Institute is an independent public policy organization based in Vancouver.
For further information:
Suzanne Walters, Director of Communications,
The Fraser Institute, (604) 714-4582,
Email suzannew@fraserinstitute.ca
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