IPS-English CANADA: Court Faces Key Decision on Date: Wed, 08 Feb 2006 22:33:30 -0800 ROMAIPS NA CR DV HD IP IN=20 CANADA: Court Faces Key Decision on =94Aboriginal Title=94 Am Johal VANCOUVER, Feb 8 (IPS) - The Xeni Gwet'in First Nations in the western in= terior region of British Columbia are taking ancient myths into the court= room as part of a nearly two decades-long battle with the Canadian govern= ment over the title to their land. =94This case is well known and will set a precedent on aboriginal title b= ased on earlier court decisions, as well as establishing the government's= role in providing financial support to First Nations for legal costs,=94= said Doug McArthur, a professor in public policy at Simon Fraser Univers= ity. The Xeni Gwet'in is one of six bands in the Tsilhquot'in National Governm= ent. They have claimed ownership of the rolling hills of Nemiah Valley, n= estled in the snow-capped mountains of the wild Chilcotin region of Briti= sh Columbia -- altogether some 430,000 hectares. Many of the Xeni Gwet'in, who number close to 400 today, spoke English as= a second language, if at all. A road connection was not built until 1973= . Electricity comes from generators, and telephone lines were installed o= nly two years ago. According to Indian and Northern Affairs Canada, a government agency, cou= rt decisions so far have not resulted in a clear definition of native lan= d rights, and the treaty process is critical to resolving uncertainty. Ho= wever, Canadian law has confirmed that aboriginal title is based in both = law and history, and is a unique property right -- although it can be inf= ringed on if the government offers a compelling rationale. As part of the trial, now before British Columbia's Supreme Court, Xeni G= wet'in elders testified about the traditional names for mountains and riv= ers in the region. Mount Tatlow was named Tsilos and is believed to have = once been a man, while a nearby peak is known as his wife Eniyud. The Tsi= lhqot'in say the couple had a fight and refused to get back together, and= were turned to stone for their stubbornness. In 1864, in what was known as the Chilcotin War, band members clashed wit= h land speculators who wanted to build a toll road into the area to suppo= rt the Gold Rush and threatened to expose the local people to smallpox if= they resisted. The Tsilhquot'in killed 15 people in the uprising and an armed militia wa= s sent to hunt them down. The Tsilhquot'in agreed to peace talks, but lea= ders were subsequently arrested and seven were hung, including the leader= Klatsassin. As a result, although more a century has passed, there remains a deep lev= el of mistrust toward the government among band members, who view the rel= ationship as one that still bears the hallmarks of a colonial mentality. = There is a military installation in the region, and many historians view = the Chilcotin uprising as the last war on Canadian territory. Gary Campo, one of the lawyers working for the Xeni Gwet'in, told IPS tha= t the case has major implications for First Nations bands in and out of t= he treaty process. =94It will define legal boundaries and set up the goalposts for what abor= iginal title is. First Nations will know where they stand in negotiations= and what the premise of the relationship will be. Everyone will be able = to negotiate from a better position whether the issues are about resource= extraction, territory or defining aboriginal title. It is the most impor= tant case on the docket right now,=94 said Campo. The case was first filed by the band in 1989 over hunting and fishing rig= hts, and to protect old-growth forest from logging and mining interests. = Its scope has since widened to include major issues relating to the treat= y process in British Columbia, where many of the First Nations bands neve= r officially ceded their territory. Many First Nations and governments of= ficials will be closely watching the outcome of this case. Justice David Vickers of the BC Supreme Court visited the Nemiah Valley r= egion two years ago to listen to some of the cultural myths and tradition= al stories told by the elders in their native language. =94The use of oral history as evidence is not new. It has been accepted i= n the past and oral history evidence falls within one of the exceptions t= o hearsay, provided individuals pass the test for threshold which is defi= ned as necessity and reliability. It is the most important aboriginal cas= e on the docket right now because it will define aboriginal title which s= hould give certainty to the process which is good for everyone,=94 said C= ampo. Vickers used an open court process that accommodated village elders who c= ould not travel to testify. Cultural myths and traditional stories were o= rally communicated and translated for a court reporter. The sessions incl= uded nighttime sittings to respect the cultural traditions of the Xeni Gw= et'in, which involve sharing stories after sunset. Chief Roger William sp= ent 40 days testifying. The BC Supreme Court is supposed to rule in the precedent-setting case th= is spring, but many expect the trial to take much longer. Joe Alphonse, director of government services for the Tsilquot'in Nationa= l Government, said the case has already gone on for too long and has spar= ked some tense confrontations, including a 1990 roadblock near Chilko Lak= e to stop logging in the area. He said that the Xeni Gwet'in requested me= etings with government and industry, but it was just business as usual. Alphonse described the 1864 Chilcotin War as one of opening up the gold f= ields, and how the speculators abused the native people in their arroganc= e and lust for money. =94We never ceded our territory. We went to war, wh= ere our members were killed by government authorities after they had sign= ed on to a peace accord. We have good reasons not to trust government her= e,=94 he said. =94Treaties are between nations so we will only deal with the federal gov= ernment of Canada. Our elders are our anthropologists. Every society has = its customs and beliefs and we have ours -- the courts have finally ackno= wledged this.=94 =94In the past, the relationship hasn't been a good one. The authorities = haven't respected our beliefs and customs. We had four separate community= referendums to decide to go to court. They just wanted us to shut up and= be good little Indians,=94 said Alphonse. ***** +Xeni Gwet'in First Nations (http://www.xenigwetin.com/) +RIGHTS-US: Native Group Takes Land Dispute to UN (http://www.ipsnews.net= /news.asp?idnews=3D31919) +Indian and Northern Affairs Canada (http://www.ainc-inac.gc.ca/pr/info/a= br_e.html) (END/IPS/NA/HD/CR/IN/DV/IP/AJ/KS/06) =20 =3D 02081609 ORP007 NNNN