Judgment of the Honourable Chief Justice Allan McEachern Supreme Court of British Columbia March 8, 1991
No. 0843 Smithers Registry
In the Supreme Court of British Columbia
Between:
DELGAMUUKW, also known as KEN MULDOE, suing on his own behalf and on behalf of all the members of the HOUSE OF DELGAMUUKW, and others Plaintiffs
And:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA and THE ATTORNEY GENERAL OF CANADA
Defendants
Reasons for Judgment of The Honorable Chief Justice Allan McEachern.
Dates of Trial: 374 Days between May 11, 1987 and June 30, 1990
Counsel:
Stuart Rush, Peter Grant, Louise Mandell, Michael Jackson, Murray Adams, Stanley Gunther, Leslie Pinder, Michael Fleming and David Paterson for Plaintiffs
D.M.M. Goldie, Q.C., C.F. Willms, P.G. Plant, N.J. Prelypchan, J.M. Mackenzie, T. A. Sigurdson, L.A. Fenlon, and D.J. O'Byrne for the Attorney General of British Columbia
J.A. Macaulay, Q.C., M. Marvyn Koenigsberg, Loryl D. Russell, Murray T. Wolf and Michael W. Frey for the Attorney General of Canada
Date: Friday, March 8, 1991
***SUMMARY OF FINDINGS AND CONCLUSIONS
1. The last Great Ice Age, which lasted many thousands of years, covered nearly all of British Columbia. It ended about 10,000 years ago.
2. The origins of the Gitksan and Wet'suwet'en and other aboriginal peoples of the north-west part of the province are unknown. It is generally believed they migrated here from Asia.
3. There is archaeological evidence of human habitation in the territory as long as 3,000 to 6,000 years ago. This is limited to village sites both at the coast at Prince Rupert harbour and at a few locations alongside the Skeena and Bulkley Rivers. The evidence does not establish who those early inhabitants (or visitors) were.
4. The plaintiffs are 35 Gitksan and 13 Wet'suwet'en hereditary chiefs who have brought this action alleging that from time immemorial they and their ancestors have occupied and possessed approximately 22,000 square miles in north-west British Columbia ("the territory"), and that they or the Indian people they represent are entitled, as against the province of British Columbia, to a legal judgment declaring:
(a) that they own the territory;
(b) that they are entitled to govern the territory by aboriginal laws which are paramount to the laws of British Columbia;
(c) alternatively, that they have unspecified aboriginal rights to use the territory;
(d) damages for the loss of all lands and resources transferred to third parties or for resources removed from the territory since the establishment of the colony; and
(e) costs.
5. No relief is claimed by the plaintiffs in this action against Canada which was joined as a defendant for procedural reasons. The action against Canada is dismissed. In this Summary, "Crown" refers to the Crown in right of the Colony or Province of British Columbia except where the context indicates otherwise.
6. The plaintiffs allege the territory is divided into 133 separate territories (98 Gitksan, and 35 Wet'suwet'en), and each of these separate territories is claimed by an hereditary chief for his House or its members. Some chiefs claim several territories, and some chiefs claim territories for other chiefs who are not plaintiffs.
7. Map 1 on p. 6 of the judgment is a generalized map of the province showing the general location of the territory. Map 2 at p. 7 is a reduction of a detailed map of the territory. It shows the approximate external boundary of the territory. The individual territories claimed by the Gitksan and Wet'suwet'en chiefs are shown on maps 3 and 4, at pp. 8 and 9. [Maps are unavailable]
8. Aboriginal interests arise (a) by occupation and use of specific lands for aboriginal purposes by a communal people in an organized society for an indefinite, long period prior to British sovereignty; or (b) under the Royal Proclamation, 1763.
9. Aboriginal rights under (a) above arise by operation of law and do not depend upon statute, proclamation or sovereign recognition. Such rights existing at the date of sovereignty exist and continue at the Crown's "pleasure." Unless surrendered or extinguished, aboriginal rights constitute a burden upon the Crown's title to the soil.
10. The Royal Proclamation, 1763 has never applied to or had any force in the Colony or Province of British Columbia or to the Indians living there.
11. Linguistics, genealogy, history, and other evidence establish that some of the ancestors of some of the plaintiffs or the peoples they represent have been present in the territory for an indefinite, long time before British sovereignty.
12. These early ancestors lived mainly in or near several villages such as Gitanka'at, Gitwangak, Kitsegucla, Kispiox, Ksun, Old Kuldo, New Kuldo, Gitangasx and possibly at Gitenmaax (Hazelton) which are all on the Skeena River; at Kisgegas on the Babine River; and at Hagwilget and Moricetown on the Bulkley River. Each of these villages, six of which are now abandoned, were strategically located at canyons or river junctions where salmon, the mainstay of their diet, could most easily be taken. Furthur, these early ancestors also used some other parts of the territory surrounding and between their villages and rivers, and furthur away as circumstances required, for hunting and gathering the products of the lands and waters of the territory for subsistence and ceremonial purposes.
13. [Paragraphs misnumbered in original. No paragraph 13.]
14. Prior to the commencement of the fur trade these early aboriginals took some animals by snares, dead falls and other means, but there was no reason for them to travel far from their villages or rivers for this purpose, or to take more animals than were needed for their aboriginal subsistence.
15. There may have been sparse incursions of European trade goods into the territory overland from the east or south, or from unknown seaborne sources (perhaps from Asia) before the arrival of Capt. Cook at Nootka on Vancouver Island in 1778. That date, however, or more particularly the start of the sea otter hunt on the north Pacific coast which started within the following 5 years, was the likely start of European influences in north-west North America.
16. The fur trade in the territory began not earlier than the establishment of the first Hudson's Bay posts west of the Rockies (but east of the territory), by Simon Fraser in 1805-1806, and more probably a few years after that.
17. Trapping for the commercial fur trade was not an aboriginal practice. Apart from commercial trapping, there were no significant changes in aboriginal practices between first contact with European influences within a few years on either side of 1800 and the assertion of British sovereignty. The use of modern implements such as mechanical traps and guns since the time of contact does not change the nature of an aboriginal right.
18. The law of nations and the common law recognize the sovereignty of European nations which established settlements in North America.
19. Great Britain asserted sovereignty in the territory not earlier than 1803, and not later than the Oregon Boundary Treaty, 1846, or the actual establishment of the Crown Colony of British Columbia in 1858. For the purposes of this case it does not matter precisely when sovereignty was first asserted.
20. The title to the soil of the province became vested in the Imperial Crown (Great Britain) by operation of law at the time of sovereignty. The plaintiffs recognize this title, but argue that their claims constitute an interest which is a burden upon the title of the Crown.
21. The purpose of sovereignty and of creating the Colony of British Columbia in 1858 was to settle the colony with British settlers and to develop it for the benefit of the Crown and its subjects.
22. The aboriginal interests of the post-contact ancestors of the plaintiffs at the date of sovereignty were those exercised by their own more remote ancestors for an uncertain long time. Basically these were rights to live in their villages and to occupy adjacent lands for the purpose of gathering the products of the lands and waters for subsistance and ceremonial purposes.
23. These aboriginal interests did not include ownership of or jurisdiction over the territory. Those claims of the plaintiffs are dismissed.
24. But for the question of extinguishment, the plaintiff's aboriginal sustenance rights would have constituted a legally enforceable, continuing burden upon the title of the Crown.
25. Upon the establishment of the colony, the Crown, both locally and in London, enacted a number of laws providing: (a) that all the lands of the colony belonged to the Crown (which would be the Imperial Crown at that time); (b) that the laws of England applied to the Colony; (c) giving the Governor and later a Legislative Council authority to grant the lands of the colony to settlers; and (d) authorizing the Crown through the Governor to make laws and exercise legal jurisdiction over the colony including the territory.
26. The policy of the Colony of British Columbia was (a) to allot lands to the Indians for their exclusive use, called reserves, comprising their village sites, cultivated fields and immediately adjacent hunting grounds; (b) to encourage settlement by making and available for agriculture and other purposes; and (c) to permit Indians, along with all other citizens to use the vacant Crown lands of the colony.
27. Part (a) of this policy did not usually work a well as intended. Reserves were mainly allotted in the territory in the 1890's and they were "adjusted" by a Royal Commission in 1912-1914. Although reserves in the territory included most occupied villages, they were very small because it was thought secure access to strategic fishing sites was more important than acreage. The evidence does not fully explain why the Indians of the territory did not receive strategic sites <+and+> acreage except that the Indians often failed or declined to participate in the allotment process.
28. It is the law that aboriginal rights exits at the "pleasure of the Crown," and they may be extinguished whenever the intention of the Crown to do so is clear and plain.
29. 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.
30. At the same time, the Crown promised the Indians of the colony, which applies also to the territory, that they (along with all other residents), but subject to the general law, could continue to use the unoccupied or vacant Crown land of the colony for purposes equivalent to aboriginal rights until such lands were required for an adverse purpose. Further, this promise extends to any alienated lands which are returned to the status of vacant Crown lands. Thus, lands leased or licensed for logging, for example, become usable again by Indians and others when such operations are completed.
31. The unilateral extinguishment of aboriginal interests accompanied by the Crown's promise and the general obligation of the Crown to care for its aboriginal peoples created a legally enforceable fiduciary, or trust-like duty or obligation upon the Crown to ensure there will be no arbitrary interference with aboriginal sustenance practices in the territory.
32. When the colony joined the Canadian Confederation in 1871 the charge of Indians and Indian lands was assumed by the Dominion (Canada); all colonial lands, subject to existing "interests," accrued to the province; and the province agreed to furnish whatever land was required for reserves. In 1924 Canada acknowledged that British Columbia had satisfied its obligations with respect to furnishing lands for Indian reserves.
33. The promise made and obligation assumed by the Crown in colonial times, while not an "Interest" to which Crown lands are subject, can only be discharged by the province and continues to the present time as a duty owed by the Crown subject to the terms mentioned above.
34. Since Confederation the province has had: (a) title to the soil of the province; (b) the right to dispose of Crown lands unburdened by aboriginal title; and (c) the right, within its jurisdiction under s. 92 of the Constitution, to govern the province. All titles, leases, licenses, permits and other dispositions emanating from the Imperial Crown during the colonial period or from the Crown in right of the province since Confederation are valid in so far as aboriginal interests are concerned. The province has a continuing fiduciary duty to permit Indians to use vacant Crown land for aboriginal purposes. The honour of the Crown imposes an obligation of fair dealing in this respect upon the province which is enforceable by law.
35. The plaintiffs, on behalf of the Gitksan and Wet'suwet'en people are accordingly entitled to a Declaration confirming their legal rights to use vacant Crown land for aboriginal purposes subject to the general law of the province.
36. The orderly development of the territory including the settlement and development of non-reserve lands and the harvesting of resources does not ordinarily offend against the honour of the Crown. This is because the province has many other duties and obligations additional to those owed to Indians and because (a) the territory is so vast; (b) game and other resources are reasonably plentiful; and (c) most Indians in the territory are only marginally dependent upon sustenance activities.
37. The right of Indians to use unoccupied, vacant Crown land is an not an exclusive right and it is subject to the general law of the province. The Crown has always allowed non-Indians also to use vacant Crown lands.
38. For the reasons stated in the Reasons for Judgement, it is not advisable to specify the precise rules that would govern the relationship between the Indians and the Crown. Instead, that question should be left to the law relating to fiduciary duties which provides ample legal remedies.
39. Part 15 of this judgment describes the circumstances which the province and the Indians should take into consideration in deciding whether any proposed Crown action may constitute a breach of its fiduciary duty to Indians. Generally speaking, the operative word is "reconciliation" rather than "rights" or "justification."
40. As the Crown has all along had the right to settle and develop the territory and to grant titles and tenures in the territory unburdened by aboriginal interests, the plaintiffs' claim for damages is dismissed.
41. If I have erred on the question of extinguishment, and the plaintiffs aboriginal interests or any of them are not extinguished, the evidence does not establish the validity of individual territories claimed by Gitksan and Wet'suwet'en Chiefs. Instead, therefore, the claim for aboriginal rights in such circumstances would be allowed not for chiefs or Houses or members of Houses, but rather for the communal benefit of all the Gitksan and Wet'suwet'en peoples except the Gitksan peoples of the Kitwancool Chiefs who did not join in this action.
42. These aboriginal rights, if any, would attach not to the whole territory but only to the parts that where used by the plaintiffs' ancestors at the time of sovereignty. The parts so used by each of the plaintiff peoples are defined in Part 16, and they are shown on Map 5 at p. 281. [Map unavailable]
43. The Counter Claim of the province, which was brought for procedural reasons, is dismissed.
44. Because of the importance of the matter, the divided success the parties have achieved, and other reasons mentioned in the judgment, no order is made for costs.
45. The specific judgment of the Court is detailed in Part 21.
46. In Part 22 I have made some comments about Indian matters.
PART 21
THE JUDGMENT IN THIS CASE
***The foregoing answers the legal issues arising for decision in this case. It remains only to state my conclusions in more precise form and to add some comments. Nothing I have said applies in any way to any lands set aside as Indian reserves.
(1) The action against Canada is dismissed.
(2) The plaintiffs' claims for ownership of and jurisdiction over the territory, and for aboriginal rights in the territory are dismissed.
(3) The plaintiffs, on behalf of the Gitksan and Wet'suwet'en people described in the Statement of Claim (except for the Gitksan people of the Houses of the Kitwankool chiefs), are entitled to a Declaration that, subject to the general law of the province, they have a continuing legal right to use unoccupied or vacant Crown land in the territory for aboriginal sustenance purposes as described in Part 15 of these Reasons for Judgment.
(4) The plaintiffs' claims for damages are dismissed.
(5) The Counterclaim of the province is dismissed.
(6) In view of all the circumstances of this case, including the importance of the issues, the variable resources of the parties, the financial arrangements which have been made for the conduct of this case (from which I have been largely insulated), and the divided success each party has achieved, there will not be any order for costs.
