| Appeal strengthens native

The Terrace Standard, Wednesday, December 17, 1997 - A13

| hand and urges more talks

BIG CHANGES are about
‘to hit policy makers in Vic-
toria ~~ whether they admit
it or not.

So says a Gitxsan spokes-
man and one of the their
lawyers in the wake of last
-weck’s Delgamuukw appeal
decision at the Supreme
Court of Canada,

“We know the decision
had -a major impact on
provincial policy -—— the
whole policy is bankrupt,’
said Don Ryan, chief nego-
tiator and strategist for the
Gitxsan. ;

The complex, 130-page
appeal decision handed
down early Dec, 11 was the
culimination of a land claim
case launched 13 years ago
in Smithers.

And while natives hailed it
as a victory, others were
_ More cautious in their as-
sessment.

The unanimous ruling by
the seven Supreme Court
justices for the first time
defined aboriginal title as an
exclusive right to land that
is constitutionally protected.

Significantly, aboriginal
title encompasses more than
just traditional uses such as
trapping and berry picking,
but’.also includes modern
“day economic pursuits such
as mining, the ruling con-
cludes,
~ The court spelled out how
that title can be proved and
concluded government can
infringe on that title pro-
vided it meets a test of
justification.

However, another aspect
of that infringement is fair

compeusation, the court
said,

Chief Justice Antonio
Lamer, who wrote the deci-
sion, said in the end, negoti-
ated settlements carricd out
in good faith are the way to
achieve a reconciliation be-

tween native societies and.

the rest of Canada, ‘‘Let us’,
face it, we are ali here to’

stay,”’ Lamer wrote.

In what amounts to a re-
jection of the 1991 trial de-
cision, the justices con-
cluded the judge, B.C.
Supreme Court Justice Al-
lan McEachern, erred whea
he refused io admit oral evi-
dence by Gitxsan and
Wet’suwet’en elders,

Partly because of that, the
justices concluded a new tri-
al is necessary,

They also upheld a deci-
sion that the province had
no authority io extinguish

aboriginal rights.
The rejection of the
McEachern decision

amounted to a moral victory
for the Gitxsan and
Wet'suwet’en, who had
been offended by the earlier
ruling.

*Once they destroyed his
findings of fact and said he
did it wrong, they had no
choice but to send it back
for a retrial,’’ said Peter
Grant, one of the lawyers
for the Gitxsan,

“That's why a direction of
a retrial is a major victory. It
means that the McEachern
judgement is meaningless. It
is nothing.”

Grant said the decision
will also put added empha-

ene

Don Ryan

sis on governments to nego-
tiste a treaty. ,

While the Wet’suwet’e:
aié prepared to negotiate a
resolution, it’s unclear
whether the Gitxsan will do
that or retumi to court.

Ryan said the ball is now
in the province’s court.

John Cashore

cilable differences, That
rekindled the land claim, on
hold to allow negotiations.

Talks with the
Wet’suweten resumed
shortly after the appeal was
heard, but negotiations with
the Gitxsan have yet to
Teslart.

The Supreme Court now says aboriginal
iitla encompasses more than just tradl-
tional uses such as trapping and berry
picking, but also Includes modern day
economic pursuits such as mining.

‘The issue is what the
Crown is going to do. All
we can do is sit and wait
and see what they do.”’

The province broke off
treaty talks with the Gitxsan
in early 1996, citing irrecon-

Provincial aboriginal af-
fairs minister John Cashore
said Dec, 12 that discus-
sions will likely take place
soon about resuming the
Giixsan talks.

The minister shrugged off

suggestions the ruling will
bring changes to the way
B.C. negotiates treaties and
consults with First Nations.

“Tt affirms the process
that we've been following
for several years now and [
think that’s very good for
the treaty making process,’’
Cashore said,

Asked how government
policy might change as a
result of the decision,
Cashore said it will be
“steady as she goes,”’

He said everything the
NDP government has been
doing (to date matches
what’s in the decision.
“We're on the right track,’’
he said,

“T think that we've got the
affirmation that we’ve been
seeking. This court has
made it very clear that the
way to get these matters
resolved is through negotia-
tion rather than litigation.”

But lawyer Grant said the
government is fooling itself

if it thinks the status quo

will remain.

‘‘He clearly hasn’t had his
briefings yet,’’ Grant said of
Cashore’s comments,

“‘T mean, this is a big, big
decision. The government...
could say, ‘okay, just dig
our head a little deeper in
the sand on this one and
maybe let’s duck and it will
fly over.’ It isn’t going to
happen that way.

“Whatever the govern
ment says, I can tell you
from other processes I’m in,
their development of policy
is direcily linked to what the
courts are saying.’’

Expect natives
to nail govt

A DECISION from the highest court in Canada is one
thing — it’s another to get governments to recognize
that ruling, says Don Ryan.

The judgment will remain just words until it’s actual-
ly forced upon the government, the chicf negotiator and
strategist for the Gitxsan said in an interview.

A “trigger’’ is needed to force the province’s hand
and bring last week’s decision by the Supreme Court of
Canada into play, Ryan said.

**The Gitxsan have their own interest in the land. So
what they have to do is they have to exercise that inter-
est. And then you'll see how B.C. will react or how
Canada reacts to it.’

Gitxsan chiefs were expected to mect this week to
discuss options resulting from the high court decision
in Delgamuukw. ~

Those options range from retuming to the treaty table
to taking the case back to court.

Then again, the Gitxsan could choose to challenge
govermment policy by taking some dircct action.

“I'd prefer that route, that the Gitxsan do things to
trigger the situation,” Ryan said.

“There's going to be an event that will trigger a
whole bunch of different things.”

That might involve going out and logging or un-
dertaking some other economic activity on a house ter-
ritory, he said, or it could come in the form of a legal
challenge to a forest licence.

Ryan said Tree Farm Licence 1 in the Nass, now con-
trolled by Skeena Cellulose, comes up for renewal on
Jan. 1 and that could becoming something of a test.
Portions of that licence are to be lost to the Nisga’a un-
der an agreement in principle signed between that
group and the federal and provincial governments,

Ryan said he’s not surprised both levels of govern-
ment are playing down the decision and saying their
policies already address what the ruling requires.

“Thal’s what they'll say, that’s what they'll
maintain, that’s the rhetoric that will come from the
Crown,”’ Ryan said. ,

For provincial aboriginal affairs minister John
Cashore and federal Indian affairs minister Jane
Stewart, “‘it’s business as usual,’’ he said,

A large stumbling block at the Gitxsan treaty table
was the province’s insistence that the treaty involve a
land selection model, which bases a treaty on only part
of a terzilory.

The Gitxsan have pushed for a co-management
mode] taking in all their territory, Ryan maintains the
ruling strengthens that position.

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