Without Surrender, without Consent: A History of the Nishga Land Claims

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

Canadian courts have increasingly been faced with demands from various Indian communities to uphold their land claims against the federal government, although a number of such claims have been settled as a result of direct negotiation. With the adoption of the Canadian Charter of Rights and Freedoms, some Indian claims may be acknowledged as intrinsic in the Constitution, although this will probably not apply to claims to land as put forward by the Nishgas of British Columbia, a claim that was not sustained by the Supreme Court in Calder v. Attorney-General, British Columbia, not because it was decided on substance, but because the Court was unable to reach a decision, probably for the first time in history. Three of the judges found for the Nishgas, three against, while Mr. Justice Pigeon rejected the claim on a pure technicality, relating to the manner in which the claim had first been launched in British Columbia.

This relatively short book by Daniel Raunet sets out, from a highly sympathetic point of view, the Nishga claim and traces its history. It is based on the premise, derived from the Nishga contentions, that the land had never been conquered or purchased by the Crown and that ownership had been theirs for centuries. If one bases his approach on moral or perhaps even equitable grounds, or from the standpoint of naked justice, it may be possible to accept these contentions. However, ownership of land is not a simple matter; it is a highly complex legal concept. From the point of view of both Canadian and international law, the inhabitants of a country only have the rights that the law allows them, while international law recognizes only states, and not aboriginal peoples, as having any standing in its eyes. It matters little, therefore, what the Indians — or anyone else — maintain their rights to be. Since the Universal Declaration of Human Rights has no legal effect, the rights of the Indians, or of any other Canadian inhabitants, depend solely on Canadian law and will be measured in the light of that law, however technical or footling any particular legal rule might appear to be. From this point of view, therefore, the Canadian title to the Nishga lands depends upon what, from the international law point of view, the world considers to be the basis of title; while from the internal point of view it depends entirely upon the interpretations of Canadian law by the Canadian courts.

It must also be borne in mind that it is only comparatively recently that both national and international law have paid even lip-service to the existence of aboriginal rights. Until the law is amended to recognize any particular aboriginal right, it is impossible and improper to read back into history to give what was then an unknown right an existence that was never dreamed of.

The value of the Raunet book lies in its carefully set out statement of the Indian claim and its arguments in support thereof. When the Government of Canada decides either as an act of grace or by amendment of the law to recognize this particular land claim, the book may well serve as a basis for persuasion or as an explanation for government action. The only other purpose it may serve is propaganda, in the sense that it may encourage non-Nishgas and non-Indians to take up the case of the land claimants and to pressure the government as a matter of justness and fairness to recognize these claims and to work out a fair settlement — for by now developments may have been such that greater injustice would be done to a greater number of people by recognizing the Indian title to possession than by failing to do so. In other words, equity may demand a compromise whereby the Indians must be compensated for what cannot materially be returned or given to them.