The foundation of the Supreme Court of Canada’s appeal ruling on Delgamuukw has just been dealt a critical blow. Now the Asia Pacific Gateway and all BC plans for the Haisla lands such as Enbridge and tankers need no consultation. Today the basis, the foundation of Delgamuukw and the requirement for consultation no longer has validity.
The Gitxsan Wet’suwet’en trial of Delgamuukw vs the BC Government had the verbal testimony and authority of the First Nations elders and Hereditary Chiefs held in the highest regard. The recent Haisla trial between the Hereditary Chiefs and the elected band Council has just tossed all this consideration into the waste basket.
This decision will likely, in the short and long term, remove any need for consultation as the Court has just determined the verbal submissions of the Haisla elders and Chiefs were, though credible, not worthy of any historical factual knowledge for the Court.
All the First Nations who wish to use Delgamuukw and other subsequent rulings to protect their traditional territories, their rivers and lands from the Enbridge pipeline, destructive mining projects such as the destruction of Fish Lake and anything else are now on notice; the court has determined the culture is no longer recognized simply because elders and Chiefs testified.
The Government of BC and the Canadian Federal Government of Stephen Harper have just been delivered an early Christmas gift, just in time for the Enbridge JRP hearings and rulings. First Nations culture no longer counts.
The following is how the Gitxsan described the case from the 1980’s and 90’s: Source here.The plaintiffs in the Delgamuukw case were 35 Gitxsan and 13 Wet'suwet'en hereditary chiefs. The land title action was the longest running First Nations land claim court case in Canadian history.
The trial before the B.C. Supreme Court began in 1987 and was unique in that Gitxsan and Wet'suwet'en elders took the stand to testify in their language about their distinctive culture and relationship to the land. In other similar trials, this evidence was provided secondhand through the eyes of non-Native "experts" such as anthropologists.
After the BC Court ruled against them the case went to the Supreme Court of Canada, and again from the Gitxsan;Many of the arguments the Gitxsan made were accepted by the judges, including the fact that the province had no authority to extinguish aboriginal rights and the necessity of creating a new test for aboriginal title.
Today all First Nations people are facing the same issues once again. This most recent ruling by another BC Court Judge dismissed the evidence by the elders and the Hereditary Chiefs.
The Gitxsan and Wet’suwet’en did not pursue a second case. It costs a significant amount of money to pursue such an action. Therefore, on behalf of the BC and Canadian Governments it appears the Haisla through former Chief Councillor Steve Wilson, got to take the lead. This new action could be considered to have been started, or at least initiated, at the request of Gordon Campbell. Evidence shows he pushed Wilson to overrule the elders and Hereditary Chiefs to advance projects on Haisla traditional territories.
Justice Punnett referred to the rulings of the Supreme Court in paragraph 406 on page 98, continuing on page 99 in paragraphs 407 and 408, of his decision; Proof of the existence of the alleged court requires consideration of the evidence to be presented in light of the requirements set out in R. v. Van der Peet,  2 S.C.R. 507; Delgamuukw v. British Columbia,  3 S.C.R. 1010; and Mitchell v. M.N.R., 2001 SCC 33. In those cases, the court explained that trial courts must employ the rules of evidence in a manner that is sensitive to the inherent difficulties in adjudicating Aboriginal claims.
 I take from these cases that the flexible and sensitive application of the rules of evidence cannot have the effect of reducing the burden of proof faced by the party seeking to prove a fact in issue. The burden upon that party remains the same as in civil litigation generally.
 The evidence in support of the existence of this traditional court was sparse. No documentary record was presented. The evidence was presented by individuals considered to be elders, which I understand to be a term referring to those older members of the band who are considered to have wisdom and who are keepers of its traditional, cultural and historical knowledge.
Even though the elders and Hereditary Chiefs were discussed in great detail; their names and house groups, how the Chiefs conducted their affairs and their authority over the band council Justice Punnett stated the following; There was no evidence respecting how this body functioned, the source of its authority, or what custom law it followed.
Then in the following paragraph, 415, he states how the testimony by the elders was accepted by the entire Haisla Nation present in the Court room, those on both sides of the conflict. I pause to note that the elders, who are not parties to this action and who were called to give evidence on their knowledge of the alleged court, testified with the gravitas of elders and there was a palpable acceptance by those in the courtroom of their wisdom.
Yet Justice Punnett concludes this testimony was not good enough.
This is almost exactly the same basis for the Appeal decision of the Supreme Court of Canada to overturn the original Delgamuukw decision; that this evidence needs to be considered.
It may well be the BC Provincial Court Justice system, after watching the Hereditary Chiefs fight undefended by legal Counsel, recognized they wouldn’t have any money to take this to the Supreme Court of Canada let alone launch an appeal.
And if the BC Court is successful with this expectation, the decision will stand. Following that all BC mining corporations, Coal bed Methane extraction processes, crude oil tankers and pipelines will be fair game. No longer will the First Nations be able to bring their elders and Hereditary Chiefs into court to defend their claims to their traditional territories.
That is exactly what the fight was all about on the Haisla land. It had nothing to do with defamation; it had to do with the rights of the Elders, trapline holders and Hereditary Chiefs to defend their traditional way of life.
Stephen Harpers canoe has landed. Full Court ruling with details and historical record of trial process here