The Globe and Mail, Tuesday, March 12, 1991


                         JEFFREY SIMPSON

           The fallout will be far-reaching from the 
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                B.C. ruling on aboriginal rights
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VANCOUVER


"IT IS MY CONCLUSION ... THAT THE DIFFICULTIES FACING THE INDIAN POPULATIONS
OF THE TERRITORY, AND PROBABLY THROUGHOUT CANADA, WILL NOT BE SOLVED IN THE
CONTEXT OF LEGAL RIGHTS."  

                                   -  ALLAN MCEACHERN, CHIEF JUSTICE OF THE 
                                      BRITISH COLUMBIA SUPREME COURT


These words, from a long-awaited judgment, risk becoming a self-fulfilling
prophecy, with consequences right across Canada.

In an unyielding, massive judgment, Chief Justice McEachern has kicked the
props from under just about every argument ever advanced to breathe legal
importance into aboriginal rights.

Ruling in the landmark case involving the Gitksan and Wet'suwet'en Indians'
land claims, the judge dismissed the existence of aboriginal rights, saying
they had been eliminated - "extinguished" - when the Crown began settling
British Columbia.

So sweeping was Chief Justice McEachern's rejection of the legal premises
beneath the natives' case that, as he predicted, an appeal is inevitable. So
it maybe several years before the Supreme Court of Canada rules definitively
on the tangled web of aboriginal-rights issues.

The B.C. Chief Justice had a problem in rendering judgment. The Supreme Court
of Canada, in its ruling last spring in the Sparrow case, which involved
fishing rights, suggested a test for extinguishing rights. "The sovereign's
intentions must be clear and plain if it is to extinguish aboriginal rights,"
the court said.

That statement could be interpreted to mean that rights can be extinguished
only by a treaty, agreement or statute. But no such treaties exist in B.C.,
except in the Peace River country and parts of southern Vancouver Island.

So Chief Justice McEachern had to deal with the Sparrow case and square it
with his own. This he did, in an argument that will drive native leaders up
the wall or to extra-legal means, by saying the British rulers before
Confederation simply assumed the natives had no rights and acted accordingly.
Therefore, without ever passing any statute or law, they extinguished those
rights.

"The pre-Confederation colonial enactments, construed in their historic
setting, exhibit a clear and pain intention to extinguish aboriginal interests
in order to give unburdened title to settlers ...," he concluded.

Without using the words, he gave his legal authority to the concept of
"implicit extinguishment," a concept bitterly contested by native leaders
across Canada. Previous judgments on native rights had relied on the concept
of implicit extinguishment, but more recent judgments had been chipping away
at it.

The Gitksan, of course, claimed rights arising from occupancy of land for
thousands of years. Their argument is the core assertion of native Canadians
everywhere.

By relying on colonial precedents, Chief Justice McEachern left himself and
the courts open to charges of colonial mentality. The assumptions and actions
of those who began settling B.C. in the 1850s, whatever precedents they
created in law, cannot guide political decisions today. Nor will they likely
be allowed to stand in law, although that is a matter for the Court of Appeal
and the Supreme Court.

If, by some chance, the Gitksan and Wet'suwet'en decision were allowed to
stand, the judge's own words would become a self-fulfilling prophecy: 
All legal avenues would have been closed to native Canadians.

But this decision is so extreme (its defenders would call it clear and
forceful) that B.C. natives have already rejected it out of hand and
threatened extra-legal action to draw attention to their claims. As the
country saw last summer, in the reverberating sympathy protests during the
Mohawk dispute in Quebec, action in one corner of Canada is quickly seized
upon by natives in another.

What links vastly different native groups is a profound sense of victimization
by white society and its institutions, a sense that will be enhanced by Chief
Justice McEachern's decision.

Far from calming, through legal interpretation, an already difficult
situation, the McEachern judgment makes matters more explosive. Pending the
appeal, the tensions between B.C. natives (and through them natives across
Canada) and governments are likely to become even more conflictive.