Peskotom = Pollock
Court ruling opens the door for land claims
By KIRK MAKIN
JUSTICE REPORTER for the Globe and Mail
Friday, June 21, 2002 - Page A15
The Supreme Court of Canada yesterday opened a door to land claims from aboriginals who can prove their forebears honestly believed that senior government authorities had created a reserve for them.
The ruling gives a major boost to high-profile claims such as those involving large tracts of land along B.C.'s Fraser River and within Banff National Park, said Louise Mandell, a lawyer who represented the Coalition of B.C. First Nations.
She predicted that a "multitude" of claims will seize upon the principles in the ruling. "This has been a multigenerational grievance for aboriginal people," Ms. Mandell said. "There are many, many examples of it across the country."
She said governments have adamantly refused in the past to recognize the existence of a reserve, unless there was a specific order-in-council verifying its creation.
"We had no court decision telling them that their view was wrong," Ms. Mandell said. "Now, there is. The court has expressly said that an order-in-council is not the only way to express the Crown's intention."
In its 6-3 ruling, the court expressed a desire to avoid a ruling that would sprawl across "historical and legal developments spanning almost four centuries and concerning every region of Canada."
However, it then went on to say that while orders-in-council were the best and clearest procedure for creating reserves, they were not only way.
Ironically, the court rejected the claim of the Ross River Dena Council Band to a 27-hectare chunk of land they have occupied in Yukon since the 1950s, believing it was a reserve.
"In this case, land was set aside but there was no intention to create a reserve on the part of the persons having authority to bind the Crown," Mr. Justice Louis LeBel wrote for the majority.
Ms. Mandell said the band faced an unusually high legal hurdle because of the specific historical circumstances. "I think they fought the good fight and lost -- but a lot of people are going to gain benefits from it.
"The order-in-council was like a doorstop," Ms. Mandell said. "They would say: 'If you can't find an order-in-council, we are not going to talk to you.' Well, the Supreme Court just kicked out the doorstop. We hope to see real attempts now to negotiate these claims. If not, it is going to lead to litigation."
Doug Brown, a lawyer for the Union of Nova Scotia Indians, agreed yesterday that the ruling appears to give claimants a new legal footing.
"The court is saying that if you think you are talking to a person who has the power to create a reserve -- and that is what you are trying to do -- then that's what it is," Mr. Brown said.
Mr. Justice Louis LeBel said it was established as law several years ago that when considering the validity of treaties, the Indian viewpoint and beliefs must be taken into account.
In addition, he said, the authorities who represented the British Crown during negotiations must have been important figures capable of binding the Crown.
"While these words were said in the context of treaty creation, they seem relevant in principle to the creation of a reserve," Judge LeBel said yesterday.
He said it is therefore necessary "to take the Indian's point of view" in reserve cases and ask whether it was reasonable for them to believe that the authority they were dealing with was capable of binding the British Crown.
"In both cases, the honour of the Crown rests on the Governor in Council's willingness to live up to those representations made to the First Nation in an effort to induce it to enter into some obligation to accept settlement on a particular parcel of land," he said.
The other majority judges were Mr. Justice Charles Gonthier, Mr. Justice Frank Iacobucci, Mr. Justice Jack Major, Mr. Justice Ian Binnie and Madam Justice Louise Arbour.