Gitxsan hereditary chiefs are divided over whether to launch an aboriginal title claim that capitalizes on a 2014 landmark ruling by the Supreme Court of Canada.
Aboriginal rights lawyers Louise Mandell and Bertha Joseph were in Hazelton last week to deliver a presentation about two court cases which could influence how the Gitxsan and Wet’suwet’en proceed with land rights claims.
The Delgamuukw decision, made by the Supreme Court of Canada in 1997, was a landmark case which determined that aboriginal title did exist.
Led by Gitxsan chief Delgamuukw, whose English name is Earl Muldoe, the case pertained to Gitxsan and Wet’suwet’en territories.
In June last year, a Supreme Court case involving the Tsilhqot’in Nation determined aboriginal Canadians still owned their traditional land unless they had waived that ownership in a treaty with the government.
Both cases were outlined in detail at last week’s meeting, which was attended by about 200 people including Gitxsan and Wet’suwet’en chiefs.
Although the Delgamuukw decision gave First Nations the capacity to negotiate treaty deals, the Tsilhqot’in decision ruled that aboriginal groups would waive their inherent ownership of the land by signing a treaty.
A group of hereditary chiefs known as the Gitxsan United Chiefs, who oppose the signing of any treaty, believe their aboriginal title claim should rest on the findings of the Tsilhqot’in decision.
They believe a treaty deal would sign away the ownership that the Tsilhqot’in ruling awards them.
Hereditary chief Guuhadakw (Norman Stephens) said negotiating a treaty after last year’s Supreme Court decision would be “ludicrous.”
He and the GUC are rallying support to launch a title claim that capitalizes on that ruling.
“After the Tsilhqot’in decision we had all assumed that the nation would be chomping at the bit to actually get back into court and it seemed to be taking a little too long,” he said.
“With the Gitxsan Treaty Society pushing for treaty negotiations we started to get very concerned that the momentum has been lost from the Tsilhqot’in decision.
“The Tsilhqot’in decision brings us so close to getting the title issues settled that to do nothing is to do an injustice to our ancestors.”
He said there were “things that are in progress right now that would lead to a title launch,” but would not provide more detail.
If there was enough support to launch a claim, estimating and securing finances would be the next step, Guuhadakw added.
“Most people consider the Gitxsan and the Wet’suwet’en, to be in the strongest position of anyone in the province of actually completing the title question,” he said.
But chief negotiator Gwaans (Beverley Clifton-Percival) from the Gitxsan Hereditary Chiefs, which represents many but not all hereditary chiefs, said the Delgamuukw case was the best legal basis on which to launch a claim.
Gwaans, who is also the negotiator for the Gitxsan Treaty Society, said the GHC was unique to other First Nations groups.
“The public must understand that the Tsilhqot’in case is a band council case and not founded on a hereditary system,” she said.
“As well, the Tsilhqot’in case relied on the principles from the Gitxsan case to establish title.
“As a result, the legal test for title and rights in the Delgamuukw case is still what the Gitxsan will rely on, not the Tsilhqot’in case.
Although Gwaans said it would be a huge undertaking to recommence the land rights claim that was initiated through the Delgamuukw case, she added leaders were ready for a “new challenge.”
“Some of the lawyers are retired,” she said.
“The main witnesses for the Gitxsan has passed on and some of the chiefs now rely on band councils as their strength, ie. the Spookw plaintiffs.
“However, the earlier Simgiigyet paved the way and new leaders are ready for any new challenge as the inheritance laws through the Gitxsan mother is still strong.”
A representative of the Office of the Wet’suwet’en did not return this newspaper’s calls.
Lawyers Louise Mandell and Bertha Johnson could not be reached.
