Date: Mon, 09 Feb 1998 10:27:28 -0500
From: Louis Proyect <lnp3-AT-columbia.edu>
Subject: M-I: Major land-claim victory for Canadian Indians 


February 9, 1998

Canada Ruling Signals New Attitude Toward Native Peoples

By ANTHONY DePALMA

KISPIOX, British Columbia -- In the early time, long ago, an Indian maiden
was taken into the sky. When she came back to the land, the man who took
her turned into a grizzly bear. Her three brothers searched for her but
found the bear first and killed it without realizing that it was their
sister's husband. They brought the skin to where the river calls back the
salmon every year. The Gitxsan people have been in Kispiox ever since. 

That, says a Gitxsan elder, Alvin Weget, is the history of his people and
their relationship to this breathtaking land of sky-high mountains. It is
preserved on a towering cedar totem pole and in stories that Gitxsan elders
first told hundreds of years ago. 

And according to a recent ruling by the Supreme Court of Canada, that story
is now legally binding evidence that can be used, along with other
histories, to support Gitxsan claims to as much as 22,000 square miles of
British Columbia's remote interior. Claims by other Indian groups cover all
of the province's nearly 600,000 square miles. 

By essentially validating Indian claims to land even where no treaties or
titles exist, the ruling -- in a case started by the Gitxsan (pronounced
GIT-san) and their neighbors, the Wetsuweten (pronounced WET-soo-wet-en) --
may redefine how government deals with Indians across Canada. 

With other recent actions, including the Canadian government's historic
apology to native peoples for 150 years of paternalistic and sometimes
racist treatment, the court's ruling seems to reflect a sharp shift in
attitudes. It is driven as much by politics and a muscle-flexing court as
by statistics indicating that Canada could be sitting on a demographic time
bomb. 

By any measure, the country's 1.3 million indigenous people -- about 5
percent of the population -- are much poorer, sicker and socially troubled
than non-natives. They are also, on the whole, much younger, and their
population is growing twice as fast. 

"Nobody can look at the reality facing aboriginal people in Canada and not
feel that something has to be done to put things back in balance," said
Indian Affairs Minister Jane Stewart. "The status quo is not acceptable." 

Ms. Stewart said she had a much better relationship than her predecessors
with Indian leaders, making compromise possible. She also cited public
opinion polls indicating that Canadians think Indians have gotten a raw
deal and want something done quickly to help them. 

But while such attitudes dominate in eastern cities, here in the west,
where there are more indigenous people and the impact of land claims and
self-government initiatives have immediate impact, things look different. 

"Supreme Surrender" is the title of a recent article that sums up western
attitudes about the Supreme Court ruling in the magazine The Western Report. 

And Gordon Gibson, a West Coast columnist for The Globe and Mail, called
the Dec. 11 decision by a court made up primarily of justices from the
eastern provinces of Ontario and Quebec "a breathtaking exercise in amateur
social engineering." 

Mike Scott, an opposition Member of Parliament with the conservative Reform
Party from British Columbia, said, "This whole thing is foolish, ill
advised and downright irresponsible." He accused the Liberal government of
Prime Minister Jean Chretien of taking politically correct positions
"without the foggiest notion of what this entails." 

Like many others here, Scott is worried that the court's decision
undermines British Columbia's control over the 95 percent of the province
that is publicly owned. The justices basically rejected the province's
long-held position that Indian claims to the land were extinguished when
British Columbia became a province in 1871. 

They also fear that uncertainty over who legally controls the land will
undermine land-use decisions and threaten British Columbia's important
timber and mining industries, which are already under great stress because
of Asian economic disruptions. 

In the six weeks since the ruling, industry leaders say, no logging
contracts have been revoked, but there is a ground swell of uncertainty and
fear about the impact of the ruling. 

"What was uncertain before," Scott said, "becomes disastrous now." 

Already, other native groups across Canada have interrupted treaty
negotiations to consider how the ruling affects them. Last weekend, Indian
leaders from British Columbia met with federal and provincial leaders and
demanded a 60-day moratorium on all timber cutting and mining permits to
give them time to apply the court ruling. 

The Gitsxan here argued that as protectors of the large territory over
which they have historically ranged, they should have the right not only to
use the land in traditional ways like hunting and fishing, but also to take
part in decisions on granting timber licenses and mining concessions and
any other way the land is used. 

Some 5,000 Gitxsan now live on scattered reserve land that totals less than
40 square miles. With unemployment among them approaching 90 percent, they
also want to use the territory as a resource base. 

They expect to receive royalties or compensation on timber, mineral and
other resources they allow to be taken from here. They say they are willing
to share those resources with the 20,000 non-natives who live in the
territory. 

The 3,500 Wetsuweten live just south of the Gitxsan on reserve land that is
even smaller and more spread out. 

Treaty negotiations have been going on throughout Canada for much of the
last 30 years, but the Gitsxan case was an important exception to most
treaty negotiations. While 46 other Indian groups in British Columbia
focused on the provincial government's treaty process, Gitxsan and
Wetsuweten leaders refused to accept ownership of a part of traditional
lands and monetary compensation for an agreement to surrender claim to the
rest. 

"We were not interested in that," said Don Ryan, chief negotiator of the
Gitxsan. Along with the Wetsuweten, the Gitsxan claimed what amounts to
co-ownership with the province of a vast area of mountain range, salmon
streams and timberland. 

The case began in the early 1980's, and the provincial courts ruled against
the natives. The provincial chief justice, Allen McEachern, infuriated them
by concluding that the oral histories presented in court by the elders were
too contradictory to stand as evidence. 

When the case was appealed to the Supreme Court, the Gitxsan and Wetsuweten
separated their claims. The province was confident it would win. 

In hearing the case last June, the Supreme Court did not allow the elders
to recite their songs and histories in the courtroom. But after reviewing
the testimony of the earlier trial, the justices brushed aside longstanding
rules of evidence, deciding that uncorroborated oral histories have the
same weight as documentary evidence. 

"The law of evidence must be adapted in order that this type of evidence
can be accommodated and placed on an equal footing with the types of
historical evidence the courts are familiar with," the justices ruled. 

Herb George, who headed the legal team for the Wetsuweten, said Indian
strategy was fundamentally changed when the case went before the high
court. Instead of claiming ownership in the traditional fee-simple way that
most Canadians own their homes, native claim was defined as a kind of
overlay on government sovereignty. 

"If you put one hand out and that represents the underlying title of the
crown, and then put your other hand on top of it, that is the aborignal
claim," George explained. "In order for crown to express itself, it will
have to go through us." 

The top court overruled the lower court but stopped short of granting
absolute title and self-government to the natives. Either a new trial, or a
new round of negotiations, is needed to resolve the issue. 

Last Saturday, the Gitxsan people gathered here in Kispiox to celebrate the
ruling with dance, song and a feast of a type that had been outlawed until
1951. They gathered in the community center here and listened once again to
the elders retell how their leaders got the White People to recognize their
laws. 

"What evidence did we have to show them this land was ours?" asked Neil
Sterritt Sr., addressing the group in what may someday be another oral
history. "There are the names of the territory, the names of the streams,
the names of the mountain peaks. This took thousands and thousands of
years. These are our boundaries. You could not fake them." 

Led by Sterritt's son, Neil Jr., the Gitxsan have meticulously recorded the
ancient tales that told of great birds leading the people to new settlement
as the big ice of the glaciers receded. They wrote out the history of how
the enraged giant grizzly destroyed the founding village of Temlaham by
thrashing in the river and sending up a huge foaming wave that swept
everything away. 

In that instance, they even brought in geologists and botanists to search
for historic concurrence. They drilled deep core samples and found evidence
that a monumental mudslide leveled the area about 3,500 years ago, placing
the event within the time frame of Gitsxan habitation. 

The Supreme Court's acceptance of the oral histories was a bold act of
judicial activism in a country accustomed to seeing its Parliament, not its
top court, affect such legal changes. The justices encouraged the
government and the Gitxsan to settle the issue through negotiation, but
Ryan, the Gitxsan negotiatior, said he doubts the province will act unless
the courts force it to do so. 

Whether they return to court or not, the Gitxsan see the ruling as
recognition of their history, validation of their laws and acknowledgement
of their ancient way of life. This is not the first time two so very
different cultures with foreign concepts of time and history have met in
this place. After deciphering the totem pole that relates the story of
Kispiox, Weget, the tribal elder, accompanied visitors to the village
cemetery. There he pointed out a marble headstone he discovered years ago,
almost completely buried in dirt and debris. 

It was for a Chief Alexander Kit-Lu-Dalthque. The stone and its base bore
no dates. But they had clearly been carved by non-native craftsmen. And the
eulogy too had unmistakeably come from a non-Gitxsan source, lost in early
time: "His end was peace," read the words carved in stone. 

"His ancestors were the discoverers of Kispiox," says the stone, which then
embraces an imprecise view of history more suited to a totem pole by
adding, "hundreds of years ago." 

Copyright 1998 The New York Times Company 




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