Good morning Chiefs Council and friends For your information, future reference and further distribution, please find the following links for the factum of the COALITION OF THE UNION OF B.C. INDIAN CHIEFS, THE OKANAGAN NATION ALLIANCE AND THE SHUSWAP NATION TRIBAL COUNCIL AND THEIR MEMBER COMMUNITIES, THE OKANAGAN, ADAMS LAKE NESKONLITH AND SPLATSIN INDIAN BANDS and the Speaking Notes of Louise Mandell, Counsel for the UBCIC COALITION as presented on November 7, 2013 at the Tsilhqot’in Appeal at the Supreme Court of Canada. Please note, the full webcast of the Appeal is found online. 34986 Roger William, on his own behalf and on behalf of all other members of the Xeni Gwetin First Nations Government and on behalf of all other members of the Tsilhqotin Nation v. Her Majesty the Queen in Right of the Province of British Columbia and the Regional Manager of the Cariboo Forest Region, et al. (British Columbia) (Civil) (By Leave) UBCIC Coalition factum: scc-csc.gc.ca/factums-memoires/34986/FM140_Intervener_Coalition-of-the-Union-of-BC-Indian-Chiefs-et-al.pdf The factums of the appellant, the respondent and the interveners are online: scc-csc.gc.ca/case-dossier/info/fac-mem-eng.aspx?cas=34986 Archived webcast: scc-csc.gc.ca/case-dossier/info/webcast-webdiffusion-eng.aspx?cas=34986 ============= Speaking Notes Louise Mandell, Q.C., LL.D. (hon.) Counsel for the Intervener, UBCIC Coalition Tsilhqot’in Appeal Supreme Court of Canada November 7, 2013 I open by telling you of a simple act that illustrates Aboriginal title. Amongst the Okanagan Interveners, when children are born, their newborn feet are placed on the faces of their relatives – to impress on them, as they walk in this world, that they are walking on the faces of their ancestors who are now part of the earth. This simple act reflects a relationship that is sacred – this new generation travelling a path that carries obligations stretching over centuries and landscapes, binding the people to the land, together with the laws that mediate their relationship with each other, other Nations, and all other life forms. It is these deep and complex relationships – generative of language, traditions, culture, spirituality and laws – that Indigenous Peoples seek to protect through Aboriginal title. Indigenous cultures are land-based – their identities intertwined with the land – this is not a mutable characteristic. Maintaining this relationship provides cultural security and hope for the future. Cultural security is the British Columbia Court of Appeal’s promise for achieving reconciliation. Rights not title. Justification not jurisdiction. The profound flaw in the Court’s reasoning is that it fundamentally misunderstands Indigenous identity, and ignores the way in which the exercise of legal orders is vital to the survival and cultural continuity of any Peoples. The Court replaced the Aboriginal perspective with its own, and then redefined the Aboriginal “cultures” or “traditions” that the Court would protect. The Court creates “imaginary Indians” – capable of subsisting on small spots of Aboriginal title lands, without meaningfully participating in decision making or benefiting from the very lands that are the core to their identities. If upheld, Indigenous cultures will slowly be eroded, unable to sustain themselves on a landscape of small spots title recognition. It is a rare case that allows the Court to see the practical implications of a decision they are being asked to make – but these Interveners can offer this perspective. In the logging cases, the Province’s legal position, adopted by the Court below, has been played out on the ground in litigation over this last decade. Title denied – rights admitted. Following Gray and Sappier, the Province admitted an Aboriginal right to harvest trees for domestic purposes in the Browns Creek and Harper Lake Watersheds. Refusing to acknowledge Aboriginal title on a watersheds basis – and blind to Indigenous laws – BC authorized extensive clearcut logging in both watersheds. The Province has insisted that recognition of any Okanagan title in the Browns Creek Watersheds would require site-specific proof to literally thousands of specific tracts of land, maintaining that the definite tract of land in issue in the litigation is a cutblock and 103 trees. Despite BC’s rights admission, despite the justification framework and ongoing litigation, the Secwepemc and Okanagan have been left without a meaningful say or involvement in decisions which constitute serious encroachments to their land, culture and spiritual identities. So what good was an admission of a right to them? The land question: How did the Province gain control of the homelands of the Indigenous Peoples in British Columbia in the absence of Treaty? The land question is central to these Interveners, who have carried the torch to protect their lands and laws from the jurisdiction the Province has exercised without constraint. The law governing the assertion of Crown sovereignty – the foundation of relations between Indigenous Peoples and the Crown – is stated in the Royal Proclamation, which spoke of unceded lands being reserved to the Indian Nations – requiring Crown governments to acknowledge the pre-existing rights of Indigenous Peoples to their land and laws as legal rights, and the incremental perfecting of Crown title and sovereignty through Treaties. In the St. Catherine’s Milling case, relying on s. 109, the Privy Council held that the “lands, mines, minerals and royalties” are available to provinces as a source of revenue only when Aboriginal title has been addressed. Yet the Province took control over the lands and resources anyway. The core of s. 91(24) protects unceded lands and resources from the Province’s conflict of interest. Yet Canada pursued assimilation under the Indian Act. Access to justice was foreclosed by making it illegal to raise money for Indigenous Peoples to go to Court about the land question and, by outlawing the potlatch, Canada sought to undermine Indigenous laws and legal orders. I have had the great privilege of representing UBCIC for almost four decades – during the patriation of the Constitution, and the extinguishment debate concluding in Delgamuukw – and I am familiar with the governments’ legal position, rationalizing British Columbia’s control of the lands and resources, denying Aboriginal title, without Treaty. Based on the doctrines of discovery and terra nullius, the governments posit that provincial title is presumed and complete, while Aboriginal title is denied, acknowledged only when proven in Court or recognized by governments through Treaty. This Court has rejected this position, which was reinvigorated by the Court below. Delgamuukw was a pivotal case, because the governments argued this position – the Gitxsan and Wet’suwet’en were stereotyped as Peoples without laws – their homelands a juridical vacuum available for Crown laws to rule. This Court ended the 30 year debate started in Calder, and held that Aboriginal title has not been extinguished in British Columbia. We acknowledge the simple and beautiful words of this Court, who summed it up: “We are all here to stay.” Delgamuukw accommodates different cultural narratives, worldviews, co-existing titles and jurisdictions. Aboriginal title, carrying economic and the jurisdictional elements, pre-existed and survived the assertion of Crown sovereignty, has not been extinguished, and finds expression in s. 35. The Campbell case held that the jurisdiction is not exhaustively divided between Crown governments. The next step in the legal architecture is to negotiate meaningful interaction and relationships between spheres of law. This is legal pluralism, which has not occurred because the Province maintains its legal position – which was accepted by the Court below, who held that it did not want to unnecessarily interfere with Crown sovereignty. If Indigenous Nations seek Court remedies, Aboriginal title can only ever be proven to small spots – extinguishment by definition. If Aboriginal Peoples fail to prove occupation, the effect is that the land, not proven, becomes the absolute property of the Province – extinguishment by default. The British Columbia Court of Appeal gave the Court the job of extinguishment when legislative acts clearly and plainly failed to accomplish this. According to the Province’s arguments, the Province controls lands over which rights exist and, even if an Indigenous Nation proves Aboriginal title, these small spots of Aboriginal title lands are subject to provincial control. They rely upon the Douglas Proclamation of 1858, when the Court in Delgamuukw held that this Proclamation did no more than reflect the principle that Aboriginal title is inalienable but to the Crown. To shift the colonial paradigm, to complete the unfinished business of Confederation, we ask this Court to acknowledge the centrality of land to the Tsilhqot’in and to declare Aboriginal title. How the constitutional questions are dealt with is a crucial tool in finding solutions to peaceful relationships, and we urge this Court to leave the inter-jurisdictional immunity issue to the logging cases. Why? There are two key differences. First, the issue is squarely engaged in the logging cases. The Province commenced proceedings by issuing a Stop Work Order after the Okanagan and Secwepemc authorized logging under their laws as an exercise of title. The forestry legislation prohibits all persons from cutting Crown timber unless authorized by the Province, reinforced by the Stop Work Order. The Province’s legislative control is asserted 100%. It is the Province who bears the onus of proving its claim that the timber is Crown timber and that it has the exclusive jurisdiction it has assumed under the Forestry Act as the basis for the Stop Work Order. This is the first time that the Province has been put to prove, rather than merely assert, the legitimacy of its claim to exclusive jurisdiction. Secondly, the crucial relevance of Indigenous legal orders is at the core of the logging cases. Recognition of constitutional space for Indigenous legal orders is both ancient and nascent. The judiciary is only realizing its importance to constitutional adjudication, as an emerging generation of Indigenous legal scholars, lawyers, and one day justices, articulate their possibilities to transform our shared legal landscape. Canada is a young country with ancient roots. Indigenous laws and legal systems are the deepest roots of our living tree of Confederation. They are tough roots, surviving colonization, its atrocities, its poverty, terror, grief, sorrows and mistakes. Indigenous legal orders have endured because they are acts of love of the land – and they offer help to bring about balance and sustainability on these lands which are home to us all. To borrow Justice Rothstein’s caution in Ipeelee, the goal of Aboriginal title jurisprudence should not be to “separate Canadians into two camps with two competing interests but, rather, to unite them with the shared goal of ‘a just, peaceful and safe society.’ ” Recognizing title and legal orders does not diminish Canadian society – but, rather, enriches it. I started with the image of the placing of children’s feet on the faces of their ancestors, and I want to end there. We cannot erase the past, but we can change history by the stories we tell. We can tell a new story – where Indigenous legal orders, with their sacred connections and transmitted ancient consciousness, have constitutional space to grow and deepen, and our collective endeavour can shine like a light as an example to the world. We thank you for hearing this case, and we trust in your decision.
Posted on: Sat, 09 Nov 2013 16:29:29 +0000
Trending Topics
Recently Viewed Topics
© 2015