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Appeal to the Supreme Court of Canada

The Gitksan and Wet’suwet’en chiefs then appealed to the Supreme Court of Canada.

The Court took only 2 days to hear the natives’ further appeal in Ottawa in June 1997. Bear in mind the trial in this case took 374 days, including 56 days of argument, and the first appeal before the Court of Appeal took two months.

On December 11th, 1997, the Supreme Court came down with its decision. Although the Court ordered a new trial, it would be terribly wrong to assume that it has put the matter off for another day. For in its December 11 judgement, it went on to make pronouncements on the nature and scope of aboriginal title which are bound to be followed in future judicial cases and which have had the effect of greatly raising the stakes in the natives’ favour in ongoing land claim negotiations. Those court pronouncements will have a devastating impact on British Columbia. They are as follows.

Based on the most scanty legal authorities, and flying in the face of authorities to the contrary, the Supreme Court of Canada decided the following:

1. It found a defect in the pleadings which it says was detrimental to the Crown’s case, even though the Crown had not raised the issue nor considered the defect to be detrimental to its case. Because of this alleged defect, the Court used it as the basis to flippantly order a new trial without apparent regard to the fact that this case had already been in the courts for 13 years at a cost to Canadian taxpayers of perhaps $20 million.⁵
2. It found defective the findings of fact of the trial judge, even though it could find no "palpable and overriding error," which is the accepted ground for an appellate court making such a move. In doing so, the court went on to create out of thin air a new and special set of rules of evidence in aboriginal cases. Although the trial judge had been careful to hear all the oral evidence, he decided in the end that he couldn’t accept what passed for oral history as it was clearly a mix of folklore, fantasy, mythology, and long-held beliefs. The Supreme Court castigated him for taking that sensible approach because it said that in aboriginal cases, one must weigh the oral evidence of the aboriginal spokesman independently and not look for collaboration.

What this amounts to is that oral evidence of historical events related by aboriginal spokespeople is to be accepted without question. This prompted Mr. Geoff Plant, MLA, who served as a counsel on the successful legal team for the province at the trial to say, "The Supreme Court’s treatment of the oral evidence issue is one of the most remarkably disingenuous pieces of legal reasoning ever seen."⁶

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Last Modified: August 23, 2000.