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The government approach changes drastically

With the election of the Harcourt government in 1991, the "Age of Enlightenment" on aboriginal matters began. Mr. Harcourt solemnly announced that it was his government’s intention to deal with native bands—now to be called First Nations—on a "government-to-government basis." We soon discovered what those words meant when the government entered into the Clayoquot Sound Agreement, effectively giving to five Indian bands on the west coast of Vancouver Island a veto over all land-use decisions involving forest tenures, logging, mining, water resources, wildlife management, recreation, and parks in a vast, 260,000 hectare area.

I suggest that meaningful consultation is one thing, but when efforts by government to accommodate the demands of a particular group go beyond genuine consultation into the realm of joint decision-making, governments have abdicated their responsibility to govern. Vaughn Palmer caught the significance of what was going on in a Vancouver Sun column:

Now here for the first time, a B.C. government ... has surrendered control of a vast region of the province to a joint management board .... The New Democrats clearly intend this agreement as a model, not just for the management of the Clayoquot, but for every area subject to land claims—which is virtually the whole of British Columbia.³

Another political event of significance took place about this time. In the Harcourt government’s first Throne Speech on March 17th 1992, the following statement appears: "We recognize aboriginal title and the inherent right of aboriginal peoples to self-government." Without having the foggiest notion of what "aboriginal title" meant, or the implications of acknowledging the inherent right of aboriginal self-government, a concept which was rejected when the people of Canada turned down the Charlottetown Accord, the new government blundered ahead.

One prominent Vancouver lawyer said at the time:

The historical significance of this statement in the history of British Columbia land claims is profound. It is laudable to work towards a resolution of historic injustices. But the Harcourt government was elected to act in the interests of British Columbians... the position of the government is somewhat equivalent to recognizing after 120 years that your neighbours have title to your house and then entering into negotiations with them to resolve their claims.⁴

Of the greatest significance of all in relation to the Delgamuukw case, was that prior to the case going to the Court of Appeal, the NDP government unceremoniously fired the legal team that had proved to be so successful at the trial, and replaced it with counsel which the Attorney General of the day described as being "more sympathetic to aboriginal claims." The province’s case on appeal was watered down accordingly.

After a two-month hearing and a further year’s deliberation, the Court of Appeal brought down its decision in June 1993. Not unlike the trial judge’s findings, the Appeal Court’s findings were exceedingly modest in comparison to what the plaintiffs had sought. The court found no ownership rights, no rights to jurisdiction or inherent self-government, and no expansive definition of aboriginal rights or title. It did find that there were limited aboriginal rights to engage in those traditional activities for sustenance and ceremonial purposes which were distinctive to each particular aboriginal society prior to colonial contact. But these were user rights, the right to conduct traditional uses over land. They were not ownership rights in land. They were rights for using the land for traditional purposes, such as hunting, trapping, and fishing, not for commercial purposes, and not for under-surface mining. So these modest user rights were the sum and substance of aboriginal rights related to land in British Columbia, as found by the Court of Appeal in Delgamuukw in 1993.

So, despite the province’s best efforts to seriously undermine its own case on appeal, the Court of Appeal supported the trial judge in rejecting the natives’ claim to ownership and jurisdiction.

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Last Modified: August 23, 2000.