17 March 2010
The legal action taken by the Gitxsan to the Supreme Court of Canada is the most recent in a long list of attempts to seek recognition of - and assert - its ownership, jurisdiction, and aboriginal title over 33,000 square kilometres of traditional territory in northwestern BC, and its right to self-government.
One of the first public acts asserting ownership occurred in 1872. At that time, the chiefs from the Gitxsan community of Gitsegukla blockaded the Skeena River to all trading and supply boats to protest the actions of miners on their territories. Further protests against mining exploration took place in the late 1800's and in the early part of this century these protests expanded to cover activities such as road building and surveying within Gitxsan territory. In 1908, a Gitxsan delegation met with Prime Minister Wilfred Laurier in Ottawa to discuss European incursions on their territories. In other protests at this time, Gitxsan chiefs quoted from the Royal Proclamation of 1763 as a basis for their ownership of the land.
In the 1960's and 70's, increased natural resource exploitation on Gitxsan territory, the Supreme Court ruling in the Calder case, and an offer to negotiate on land claims from the Liberal government of Pierre Trudeau all spurred the beginning of the Delgamuukw court action. A joint assembly of the Gitxsan and Wet'suwet'en in 1977 resulted in a declaration outlining ownership, jurisdiction, self-government and a notification of readiness, once again, to begin negotiations with the federal government.
By 1984, land claim negotiations with Canada had gone nowhere. The Gitxsan and their neighbours, the Wet'suwet'en, decided to jointly pursue the matter in the courts. On October 24, the chiefs filed a statement of claim in the BC Supreme Court against the province seeking a declaration that they had ownership of, and jurisdiction over, their House territories. Thirty-five Gitxsan and 13 Wet'suwet'en hereditary chiefs' names appear on the statement of claim filed that day.
Thirteen years later the case, which became known as the Delgamuukw decision, was decided by the Supreme Court of Canada. That ruling set a new precedent for proving aboriginal title, elevating oral history testimony (adaawk) to the same level as written testimony. It also defined "consultation" and stated that compensation may be required if aboriginal rights were infringed upon by activities sanctioned by the federal or provincial governments.
In the meantime, treaty negotiations under the BC Treaty Process sputtered along, the main impediment being the lack of a mandate for the provincial negotiators sitting at the table. The Gitxsan joined the trilateral process in 1994 only to see BC walk away from the table in 1996 to pursue legal action with the Delgamuukw case. The province came back to the table in 2001 and the Gitxsan agreed to continue trilateral treaty negotiations.
Part of the continuing frustration for the chiefs is that resource extraction and development has continued unabated in the Gitxsan territories while the aboriginal title court action and treaty negotiations are under way. The Gitxsan people are largely shut out of these mainstream economic sectors and, while millions of dollars of natural resources leave the territories, unemployment rates on-reserve are between 60-90%.