Canadian court faces key decision on "Aboriginal Title"





The Xeni Gwet'in First Nations in the western interior region of British Columbia are taking ancient myths into the courtroom as part of a nearly two decades-long battle with the Canadian government over the title to their land.

"This case is well known and will set a precedent on aboriginal title based on earlier court decisions, as well as establishing the government's role in providing financial support to First Nations for legal costs," said Doug McArthur, a professor in public policy at Simon Fraser University.

The Xeni Gwet'in is one of six bands in the Tsilhquot'in National Government. They have claimed ownership of the rolling hills of Nemiah Valley, nestled in the snow-capped mountains of the wild Chilcotin region of British Columbia -- altogether some 430,000 hectares.

Many of the Xeni Gwet'in, who number close to 400 today, spoke English as a second language, if at all. A road connection was not built until 1973. Electricity comes from generators, and telephone lines were installed only two years ago.

According to Indian and Northern Affairs Canada, a government agency, court decisions so far have not resulted in a clear definition of native land rights, and the treaty process is critical to resolving uncertainty. However, Canadian law has confirmed that aboriginal title is based in both law and history, and is a unique property right -- although it can be infringed on if the government offers a compelling rationale.

As part of the trial, now before British Columbia's Supreme Court, Xeni Gwet'in elders testified about the traditional names for mountains and rivers in the region. Mount Tatlow was named Tsilos and is believed to have once been a man, while a nearby peak is known as his wife Eniyud. The Tsilhqot'in say the couple had a fight and refused to get back together, and were turned to stone for their stubbornness.

In 1864, in what was known as the Chilcotin War, band members clashed with land speculators who wanted to build a toll road into the area to support the Gold Rush and threatened to expose the local people to smallpox if they resisted.

The Tsilhquot'in killed 15 people in the uprising and an armed militia was sent to hunt them down. The Tsilhquot'in agreed to peace talks, but leaders were subsequently arrested and seven were hung, including the leader Klatsassin.

As a result, although more a century has passed, there remains a deep level of mistrust toward the government among band members, who view the relationship as one that still bears the hallmarks of a colonial mentality. There is a military installation in the region, and many historians view the Chilcotin uprising as the last war on Canadian territory.

Gary Campo, one of the lawyers working for the Xeni Gwet'in, told IPS that the case has major implications for First Nations bands in and out of the treaty process.

"It will define legal boundaries and set up the goalposts for what aboriginal title is. First Nations will know where they stand in negotiations and what the premise of the relationship will be. Everyone will be able to negotiate from a better position whether the issues are about resource extraction, territory or defining aboriginal title. It is the most important case on the docket right now," said Campo.

The case was first filed by the band in 1989 over hunting and fishing rights, and to protect old-growth forest from logging and mining interests. Its scope has since widened to include major issues relating to the treaty process in British Columbia, where many of the First Nations bands never officially ceded their territory. Many First Nations and governments officials will be closely watching the outcome of this case.

Justice David Vickers of the BC Supreme Court visited the Nemiah Valley region two years ago to listen to some of the cultural myths and traditional stories told by the elders in their native language.

"The use of oral history as evidence is not new. It has been accepted in the past and oral history evidence falls within one of the exceptions to hearsay, provided individuals pass the test for threshold which is defined as necessity and reliability. It is the most important aboriginal case on the docket right now because it will define aboriginal title which should give certainty to the process which is good for everyone," said Campo.

Vickers used an open court process that accommodated village elders who could not travel to testify. Cultural myths and traditional stories were orally communicated and translated for a court reporter. The sessions included nighttime sittings to respect the cultural traditions of the Xeni Gwet'in, which involve sharing stories after sunset. Chief Roger William spent 40 days testifying.

The BC Supreme Court is supposed to rule in the precedent-setting case this spring, but many expect the trial to take much longer.

Joe Alphonse, director of government services for the Tsilquot'in National Government, said the case has already gone on for too long and has sparked some tense confrontations, including a 1990 roadblock near Chilko Lake to stop logging in the area. He said that the Xeni Gwet'in requested meetings with government and industry, but it was just business as usual.

Alphonse described the 1864 Chilcotin War as one of opening up the gold fields, and how the speculators abused the native people in their arrogance and lust for money. "We never ceded our territory. We went to war, where our members were killed by government authorities after they had signed on to a peace accord. We have good reasons not to trust government here," he said.

"Treaties are between nations so we will only deal with the federal government of Canada. Our elders are our anthropologists. Every society has its customs and beliefs and we have ours -- the courts have finally acknowledged this."

"In the past, the relationship hasn't been a good one. The authorities haven't respected our beliefs and customs. We had four separate community referendums to decide to go to court. They just wanted us to shut up and be good little Indians," said Alphonse.



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