The Supreme Court of Canada’s land-title decision in favour of the T’silhqot’in people poses economic challenges, writes Gwyn Morgan in the July 18 Times Colonist.
Of course it does. Some difficult times lie ahead, times that will require good will and compromise on all sides.
But it is increasingly tiresome to have people such as Morgan allege that the T’silhqot’in decision is a “breathtakingly extreme interpretation” of the law. It was the trial judge’s interpretation, based on case law stretching back to the 19th century, and unanimously affirmed by the Supreme Court.
Most of the judges of this court, by the way, were appointed by Prime Minister Stephen Harper and are hardly the wild-eyed judicial activists that Morgan seems to imply they are.
Nor has the decision rendered the situation “uncertain.” It already was, and the Supreme Court did exactly what it was supposed to do: resolve once and for all whether the sort of evidence put forward in the case was sufficient to establish aboriginal title to all or part of the claim.
That is why, years ago, when the treaty process had broken down because of uncertainty, the court ordered the government to fund both sides of the case. A clear decision was needed and an inconclusive one would have been an unforgivable waste of time and money.
Morgan’s complaints simply repeat a litany that goes back more than a century and that has proved terribly costly, not only to indigenous British Columbians but to all of us. Indeed, Morgan sounds eerily like former B.C. premier Richard McBride, who, in a draft letter to prime minister Wilfrid Laurier in 1910, said that he would never allow the courts to decide the question of Indian title in B.C.
A court decision for the Indians, he said, “would affect the title to all the land on the mainland” and “more than half the land … on Vancouver Island.” It “would have a most disastrous effect on our financial standing and would jeopardize the very large sums of money already invested in this province by English and other investors.” He concluded that it was too serious a matter to submit to the courts, even to the highest court. In other words, he was concerned about a costly adverse decision. In 1910.
McBride and his ilk succeeded in keeping the question out of court and stonewalled for decades. They clearly thought they were being clever.
As it turns out, they were not. They were simply ensuring that justice would be delayed and that the task of redress and reconciliation would be left to their descendants.
In the final version of his letter, by the way, McBride toned down the language. So should Morgan.
Hamar Foster is a professor of law at the University of Victoria.
