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Indigenous struggles for land rights in Canada, Japan and Mexico : Delgamuukw, Nibutani Dam and Zirahuén Ramirez-Espinosa, Naayeli Esperanza 2014

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INDIGENOUS STRUGGLES FOR LAND RIGHTS IN CANADA, JAPAN AND MEXICO: DELGAMUUKW, NIBUTANI DAM AND ZIRAHU?N   by Naayeli Esperanza Ram?rez Espinosa     A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF   DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law)    THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)   February 2014     ? Naayeli Esperanza Ramirez Espinosa, 2014   ii Abstract  This dissertation is an interpretive case study of the claims and decisions of three legal cases that were brought to the courts by Indigenous peoples with respect to their constitutional rights. The first is the Delgamuukw case in Canada; the second is the Nibutani Dam case in Japan; and the third is the Zirahu?n case in Mexico. Even though, in these three cases, the courts seem to be sympathetic to the pleadings of the Indigenous plaintiffs, they all dismissed, rejected, or left their claims unresolved on procedural grounds.   The focus of the study are the procedural standards used by the courts for the review of the plaintiffs? claims in the three cases and focuses on four themes: 1) the paucity of suitable causes of action to challenge the interventions of the state and third parties by Indigenous communities; 2) the difficulties of proof; 3) the inadequacy of remedies corresponding to the rights established in national and international laws; and 4) legal language and uncertainty regarding the content and reach of the rights of Indigenous peoples in the three jurisdictions. The study also looks at the rationality behind such standards and the courts? concerns with fairness, coherence and autonomy.   This study indicates that the Indigenous plaintiffs? constitutional claims were extremely difficult to frame within the causes of action available for them. The actions were extremely difficult to use either because there were no causes of action to protect their rights at a proper moment, the causes of action disregarded crucial characteristics of the legal and material realities of the communities, or the causes of action lacked corresponding remedies. These difficulties suggest that there was a redundant tension between the notion of sovereignty that courts used in their decisions and the rights of Indigenous peoples. The analysis also suggests that the plaintiffs? constitutional rights are conditional to an issue of constitutional power that needs to be resolved.      iii Preface  All research and associated methods were approved by the University of British Columbia?s Behavioural Research Ethics Review Board [Certificate Number H11-00625].   A version of Chapter 6 has been accepted for publication [Naayeli E. Ramirez Espinosa, ?Juzgando los Derechos de Minor?as Ind?genas a su territorio: un estudio comparado de las tenicalidades procedimentales que frustraron las demandas en los juicios de Delgamuukw, Nibutani, y Zirahu?n? (2014)].   I was the lead investigator, responsible for all major areas of concept formation, data collection and analysis, as well as the dissertation composition. This dissertation was pursued under the supervision of Professor Shigenori Matsui, with the collaboration of Professors Robin Elliot, Maxwell Cameron, and Steve Wexler.   Professors Shigenori Matsui, Robin Elliot, and Maxwell Cameron were members of the supervisory committee of this project and they were involved throughout the project in concept formation and manuscript composition. Professor Steve Wexler was involved in the concept formation and contributed to draft edits.     iv Table of Contents  Abstract.......................................................................................................................................... ii	 ?Preface........................................................................................................................................... iii	 ?Table of Contents ......................................................................................................................... iv	 ?List of Abbreviations ................................................................................................................... vi	 ?Acknowledgements ..................................................................................................................... vii	 ?Dedication ................................................................................................................................... viii	 ?Chapter  1: Introduction ...............................................................................................................1	 ?Chapter  2: Methodology and Law ..............................................................................................9	 ?2.1	 ? Case studies...................................................................................................................... 14	 ?2.2	 ? Interviews and visits ........................................................................................................ 21	 ?2.3	 ? Literature review and other sources................................................................................. 25	 ?2.4	 ? About the researcher/author............................................................................................. 29	 ?Part I: The Three Cases in Context............................................................................................32	 ?Chapter  3: The Delgamuukw Case ............................................................................................37	 ?3.1.1	 ? Context of the Delgamuukw case.............................................................................. 39	 ?3.1.1.1	 ? Indigenous peoples............................................................................................. 40	 ?3.1.1.2	 ? Aboriginal title in Canada and British Columbia ............................................. 42	 ?3.1.1.3	 ? Judicial decision-making on the matter of Aboriginal title and rights in BC.... 44	 ?3.1.1.4	 ? The Gitksan and the Wet?suwet?en peoples ....................................................... 55	 ?3.1.2	 ? The claims at trial...................................................................................................... 63	 ?3.1.2.1	 ? Study of evidence................................................................................................ 70	 ?3.1.2.2	 ? The trial decision ............................................................................................... 76	 ?3.1.2.3	 ? The British Columbia Court of Appeal?s decision............................................. 78	 ?3.1.2.4	 ? The Supreme Court of Canada?s decision ......................................................... 83	 ?Chapter  4: The Nibutani Dam Case ..........................................................................................91	 ?4.1.1	 ? Context of the Nibutani Dam case ............................................................................ 94	 ?4.1.1.1	 ? Ainu people and Japan....................................................................................... 96	 ?4.1.1.2	 ? The Nibutani area and the dam ....................................................................... 108	 ?4.1.1.3	 ? The plaintiffs .................................................................................................... 114	 ?4.1.2	 ? The claims in the Nibutani Dam case ..................................................................... 116	 ?4.1.3	 ? The Sapporo District Court?s decision.................................................................... 119	 ?Chapter  5: The Zirahu?n Case ................................................................................................128	 ?5.1.1	 ? Context of the Zirahu?n case .................................................................................. 130	 ?5.1.1.1	 ? The Zirahu?n Community ................................................................................ 136	 ?5.1.1.1.1	 ? The Zapatista Movement, the San Andr?s Accords, and the constitutional reform of August 14, 2001.......................................................................................... 146	 ?5.1.2	 ? The claims............................................................................................................... 153	 ?5.1.3	 ? The decisions rendered in the case.......................................................................... 155	 ?5.1.3.1	 ? The Federal District Court?s decision ............................................................. 156	 ?5.1.3.2	 ? The Second Chamber of the Supreme Court of Justice?s decision .................. 157	 ?Part II: Uncertainty, Misunderstanding and Subordination.................................................161	 ?Chapter  6: Examining the Issues of Procedure in the Three Cases .....................................169	 ?6.1	 ? The paucity of suitable causes of action ........................................................................ 169	 ?  v 6.2	 ? The issue of proof .......................................................................................................... 177	 ?6.3	 ? The lack of suitable remedies ........................................................................................ 193	 ?6.4	 ? The contested meaning of Indigenous peoples? rights and uncertainty in the law ........ 202	 ?6.5	 ? Conclusions.................................................................................................................... 209	 ?Chapter  7: The Rationale Behind the Law in Delgamuukw, Nibutani Dam, and Zirahu?n217	 ?7.1	 ? ?Reason? ......................................................................................................................... 218	 ?7.2	 ? Individualism ................................................................................................................. 223	 ?7.3	 ? Law as an Autonomous discipline ................................................................................. 226	 ?7.4	 ? Autonomy and the decision in Delgamuukw ................................................................. 229	 ?7.5	 ? Individualism and the Nibutani Dam case ..................................................................... 233	 ?7.6	 ? The presumptions of the court in Zirahu?n.................................................................... 234	 ?7.7	 ? Conclusions.................................................................................................................... 235	 ?Chapter  8: The Principles That Guided the Decisions in Delgamuukw, Nibutani Dam, and Zirahu?n ......................................................................................................................................240	 ?8.1	 ? The notion of sovereignty .............................................................................................. 241	 ?8.2	 ? The decisions in Delgamuukw, Nibutani Dam, and Zirahu?n and ?sovereignty?.......... 243	 ?8.3	 ? Conclusions.................................................................................................................... 258	 ?Chapter  9: Conclusions ............................................................................................................263	 ?Bibliography ...............................................................................................................................276	 ?Appendices..................................................................................................................................307	 ?Appendix A List of Individuals Interviewed .......................................................................... 307	 ?   vi  List of Abbreviations  BC   British Columbia BCCA  British Columbia Court of Appeal BCSC   British Columbia Supreme Court CONACyT  Mexican National Council for Sciences and Technology (Consejo Nacional de Ciencia y Tecnolog?a) COCOPA  Cooperation and Pacification Commission (Comisi?n de Concordia y Pacificacion)  CONAI  Former-National Intermediation Committee (Comisi?n Nacional de Intermediaci?n)  CONAPO  National Council of Population (Consejo Nacional de Poblaci?n) EU   European Union GWES  Gitksan-Wet'suwet'en Education Society HBC   Hudson?s Bay Company HEC   Hokkaido Expropriation Committee (????????)  ICCPR  United Nations International Covenant on Civil and Political Rights ILO   International Labour Organization NGO   Non-Governmental Organization PROCEDE  Ejidal Rights Certification Program (Programa de Certificaci?n de Derechos Ejidales y Titulaci?n de Solares) SCC   Supreme Court of Canada SCJN   Supreme Court of Justice of Mexico (Suprema Corte de Justicia de la Naci?n) SSSCJN Second Chamber of the Supreme Court of Justice of Mexico (Segunda Sala de la Suprema Corte de Justicia de la Naci?n)  SFU   Simon Fraser University  UBC   University of British Columbia UCEZ   Emiliano Zapata Comuneros Union (Uni?n of Comuneros Emiliano Zapata) UN   United Nations UNPFII  United Nations Permanent Forum on Indigenous Issues US   United States of America   vii Acknowledgements  This project has been a great challenge. I would have never accomplished it without the support, guidance, cheering, love, friendship, and assistance of many amazing people.  For the writing of this dissertation, I was economically supported with the following scholarships: Japan Foundation PhD scholarship, the CONACyT (Mexico) scholarship for graduate studies abroad, and various grants from the Faculty of Law at the University of British Columbia (UBC).   This project involved a high degree of collaboration and could not have been written without the contributions of Eva Casta?eda Cort?s, Kiyoshi Fusagawa, Michael Jackson, Kenichi Ochiai, Stuart Rush, and Teruki Tsunemoto. I deeply thank them for their time and support for this project, and for trusting me with their knowledge and time. Through them, I have learned about the struggles of many communities. Their effort, every day fight, and words have always been illuminating.   I am forever thankful of all the many experiences and knowledge that I have obtained through the process of doing this study. I have benefited from the assessment and support of many faculty members and research mates in many different universities such as the University of Hokkaido, Simon Fraser University, and UBC. I offer my gratitude to the faculty, staff, and my fellow students at the Faculty of Law in UBC who inspired me every day to try my best and to bridge the many differences among us. I owe particular thanks to Joanne Chung, who never actually abided by the rule of only answering one question a day. She always managed to make me feel welcome, even on her busiest days.   My supervisor Shigenori Matsui was always available to listen my thoughts and concerns. I greatly appreciate every moment that he took to support me throughout this process. Maxwell Cameron empowered me to write what I wanted to write through his lessons on methodology. Robin Elliot was always there to provide me with coherent answers (and insightful questions) to my many questions (and assumptions). They were all sources of precious knowledge and experience.   I owe my most sincere gratitude to Steve Wexler for reading every single draft of this dissertation with me. My experience at UBC would not have been as fruitful and enjoyable without him. He has been a mentor and a friend in all senses of the word.  I would have never made it without the friendship of Erika, Pepe, Fernanda, Isabella, Vadim, Hideko, Ana, Miguel, Fuse, Paola, Lizeth, Yuki, Benoit, Rima, Sergio, Sarah, Eric, Pooja, Dada, and Deyan. Thank you for receiving me in your homes, feeding me, hiking with me, listening to my mumblings, reading my drafts, and being there during the process.   My family has been my main source of inspiration during all these years. I deeply thank them for their love, trust, and everyday effort.    viii Dedication  To the Angel, the Flower, the Moon, the Sunrise, the Queen, and Home,   who let me love them every day in their own amazing way.   1 Chapter  1: Introduction   Fiat justitia ruat coelum1 Indigenous peoples2 face numerous social, political, and legal challenges in their aim of protecting their land and people, and securing the continuity of their way of living and their cultures. Among such challenges is the unavailability of suitable causes of action3 to protect their land rights. The Special Rapporteur on the rights of Indigenous peoples to the United Nations, Rodolfo Stavenhagen, wrote in his report in 2001 that: ?[I]ndigenous land rights can, and indeed are, in some cases protected by favourable legal and court action. Still, these are exceptional cases, because generally Indigenous community do not have easy access to the judicial system and in a number of countries these remedies are not available to the Indigenous at all. It therefore appears that in the future efforts must be made to improve access to the judicial system by Indigenous community and to reform the legal systems where Indigenous peoples are denied access to legal recourse.4   This dissertation is an interpretive case study about the judicial task of interpreting constitutional rights and granting remedies to Indigenous peoples. It contains a serie of detailed explanations of three legal cases and the arguments presented in each case. It interprets the decisions rendered in the cases within their broader context and                                                 1 Latin phrase which is translated as ?Let justice be done though the heavens fall.? 2 The International Labour Organization provides that: Indigenous and tribal peoples constitute at least 5,000 distinct peoples with a population of more than 370 million, living in seventy different countries. This diversity cannot easily be captured in a universal definition, and there is an emerging consensus that a formal definition of the term ?Indigenous peoples? is neither necessary nor desirable. Similarly, there is no international agreement on the definition of the term ?minorities? or the term ?peoples?.   ?International Labour Organization, Indigenous & Tribal Peoples? rights in practice, A guide to the ILO Convention No. 169.? International Labour Standards Department (2009) Online: <http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_106474.pdf>.  See also discussion on the notion of ?Indigenous? further ahead in page 14.  3 Bryan A. Garner (Ed.) Black?s Law Dictionary (St. Paul, MN: Thompson Reuters, 2009), at 251:  A cause of action refers to a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; a claim.  4 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Mr. Rodolfo Stavenhagen, submitted pursuant to Commission resolution 2001/57 to the United Nations High Commission on Human Rights of the Economic and Social Council. UN Document: E/CN.4/2002/97, at para. 46 presented on February 4 2002. Online: <http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/fef67856bf0a29aac1256ba000566817/$FILE/G0210629.pdf>.  2 concludes that the judicial resources available to the plaintiffs in these cases were inadequate mainly because they did not enable the courts to hear the plaintiffs? evidence, understand the political and cultural context of the claims, and grant the remedies needed to protect the rights of the Indigenous communities.    The cases The three cases are contemporaneous and solved within the framework of the legal systems of Canada, Japan, and Mexico. All three cases were brought to the courts by Indigenous peoples seeking recognition of their rights to their ancestral territories. The Gitksan and Wet?suwet?en chiefs in British Colombia, Canada; two Ainu individuals in Hokkaido, Japan; and the Zirahu?n Community in Michoac?n, Mexico brought these cases to the courts. In the interest of clarity, in the following pages the cases will be refered to by the short titles of Delgamuukw, Nibutani Dam, and Zirahu?n respectively (coincidentally, the alphabetical order is the same for the cases and the countries).   This study focuses on the final decision rendered in each of the three cases: Delgamuukw v British Columbia, [1997] 3 SCR 1010; Kayano et al. v Hokkaido Expropriation Committee, [1997] 1598 Hanrei Jih? 33, 938 Hanrei Era 75 (Nibutani Dam); and Indigenous Community of Zirahu?n, Salvador Escalante Municipality, Michoac?n v Congress of the Union et al., [2002] Amparo Review 123/2002.5 All these decisions, as argued by the Indigenous communities, concern claims based on constitutional rights.6                                                  5 The names of the cases have been adapted to conform the Canadian English format of citing cases. In Japan and Mexico, the parties are not cited in the name of the cases as it is done in Canada. The adaptation is somewhat incomplete as the data provided in the Japanese and Mexican cases are different, but the titles all contain the information required to find the cases. [See the bibliography for the original citations.] 6 The decisions are available on the following Internet websites. For Delgamuukw, on the SCC website, online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/1569/index.do>; (BCCA), online: <http://www.courts.gov.bc.ca/jdb-txt/ca/93/04/1993bcca0400.html>; (SCBC), online: <http://www.canlii.org/en/bc/bcsc/doc/1991/1991canlii2372/1991canlii2372.html>. The Nibutani Dam?s decision in Japanese can be found online: <http://www.geocities.co.jp/HeartLand-Suzuran/5596/>. A translation of the decision has been published by Mark A. Levin and can be downloaded from the SSRN website, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1635447>. None of the Zirahu?n?s decisions are available online but only available to request online. The complete data on the file can be found on the SCJN website. Online: <http://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=48614>. [The Zirahu?n decisions? translations provided in this dissertation are by the author.]     3  The claim at the center of all three cases is related to land rights and jurisdiction or the power to decide what happens to the claimants? territories. In the case of Delgamuukw, the plaintiffs asked the court to recognize their Aboriginal title and right to self-government over their ancestral territory. In the Nibutani Dam case, the plaintiffs fought an Administrative Confiscatory Ruling that expropriated their properties for the construction of a dam that destroyed their ancestral ceremonial sites and left their land under water. In the Zirahu?n case, the plaintiffs argued that a constitutional reform that established new rights for Indigenous peoples to their territories was illegal because they were not consulted in its drafting. All claims in these cases were dismissed or rejected on procedural grounds. In Delgamuukw, the last court ruled that the plaintiffs altered their claims inappropriately ?without a formal amendment to their pleadings. In Nibutani Dam, the court ruled there was no appropriate remedy to fix the government?s illegal confiscatory ruling. In Zirahu?n the last court ruled that the plaintiffs lacked a legal interest in the claim.    In the Delgamuukw case, there were three decisions rendered by different courts: the Supreme Court of British Columbia (SCBC), the British Columbia Court of Appeal (BCCA), and finally, the Supreme Court of Canada (SCC). Conversely, the Nibutani Dam case has only one decision, that of the District Court of Sapporo. The Zirahu?n case includes two decisions: the first by the First Federal District Court of Michoac?n and the final decision by the Second Chamber of the Supreme Court of Justice in Mexico (SSSCJN).  This dissertation focuses on the claims, the arguments, and the decisions regarding constitutional issues in each of the three cases. It also studies and explains many non-constitutional matters, subsidiary decisions, rules of judicial procedure, and the legal context of each claim. All of the legal decisions concern jurisdiction and related issues such as ownership, self-determination, cultural security and continuity, and the right of Indigenous peoples to be consulted. The study follows the path of the causes  4 of action selected by the plaintiffs and examines the cases through the characteristics of such causes of action.   This thesis gives details about the different procedural reasons that made the plaintiffs? claims untenable in the courts. The analysis of the three cases seems to point in the direction of similar problems when courts resolve Indigenous peoples? claims in these three countries. Among these problems is uncertainty in the law, a lack of appropriate remedies for the enforcement of Indigenous rights, and the need to reconcile Indigenous rights to land and to govern themselves with the legal concept of national sovereignty. These issues are interwoven and caused the plaintiffs? rights to remain only ?paper rights.?   The final decisions in these three cases are considered by some international organizations and lawyers as favorably interpreting many of the rights of Indigenous peoples in each country, but in all cases the plaintiffs lost. The courts seemed sympathetic to their claims, but the claims of the plaintiffs were dismissed or rejected and no remedies were granted to them. Central to this dissertation were two questions: Why is it that the decisions were considered successful even though, in all cases, the Indigenous peoples who acted as plaintiffs lost? Is it that their rights have only political meaning and no actual legal meaning?    It cannot be ignored that the decisions in these three cases reflect a tension between constitutional power and constitutional rights. They also reflect a tension between the need to adjudicate the plaintiffs? claims, the great difficulty of adjudicating the rights of a distinctive culture, and the limitations of the Judiciary. The plaintiffs? claims profoundly challenged the role of the courts in the three countries. This is not surprising. The issues argued by the plaintiffs reflect serious constitutional, political and legal contradictions in these three states. Such contradictions leave considerable space for uncertainty and contestation and leave people wondering whether Indigenous claims can be fairly and fully resolved through the judicial process.    5 Furthermore, the three cases examined are not everyday legal cases. These are cases brought to the courts by Indigenous minorities with particular legal expectations over land. The plaintiffs that brought these cases to the courts had a long history of coexistence and conflict with the states that govern them and they all sought recognition of their Indigeneity and rights to their territories. Each case reflects a particular and profound ideological struggle. There is immense difficulty and controversy in the examination of the questions put to the courts in these cases.  At the same time, the substance of Indigenous claims is of over-riding importance because, for some Indigenous peoples it is a matter of cultural survival. In these three cases, the plaintiffs had no channel to negotiate the title to their land or to express their opinions about many legal conditions that regulated them. Political and administrative channels were closed to them. The plaintiffs? lawyers tried their best in the courts since it was the only legal channel open to their clients.   The difficulties in the resolution of Indigenous peoples? rights has been recognized by academics and judges alike. In the recent decision of William v British Columbia,7 Judge Groberman of the BCCA wrote:  The technical difficulty of this area of law has exacerbated the problem, and has led to considerable frustration. The efforts of the Nisga?a in Calder, the Gitksan and Wet?suwet?en in Delgamuukw, and the Tsilhqot?in in this case (to this point) all consumed enormous amounts of resources, only to have the cases end inconclusively due to problems with the way they were commenced or pleaded. The courts have frequently emphasized the need for resolution of Aboriginal rights and title issues through negotiated agreements where possible... Negotiated resolution of issues, however, is not facilitated by uncertainty in the law.8                                                  7 William v British Columbia, 2012 BCCA 285. 8 Ibid., at para. 162 and 163.  6 While courts? decisions are always in dialogue with the political will of the state9 and the work of the judiciary is essential in shaping the legal framework of a state, the process of adjudication is considerably limited by the scope of the causes of action, the state?s constitutional arrangements, judicial precedents, and the law. Moreover, the interpretation of Indigenous peoples? rights might result in different outcomes since constitutional law is usually formulated in general language and is seldom clear.10 Finally, judges ought to resolve issues seeking to balance their judicial role with established democratic principles. 11  In these three cases, judges made a noticeable effort to understand the legal reality of the communities and realized the importance of their decisions for the cultural survival of the plaintiffs, but they were unable to resolve the issues affecting the plaintiffs. But despite the various limitations of the process of adjudication by domestic courts courts hold tremendous power.   Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates his understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence? To obscure this fact is precisely analogous to ignoring the background screams or visible instruments of torture in an inquisitor's interrogation.12  If the role of courts is to give preeminence to one legal meaning and undermine others, the process by which this happens is crucial. Legal decisions ought to be convincing and ought to follow a logical reasoning that is coherent and provides certainty. When courts? decisions pertaining to politically and controversial issues                                                 9 Gordon Christie, ?Aboriginal Nationhood and the Inherent Right to Self-Government,? (2007) Research Paper for the National Centre for First Nations Governance, at 2:  For better or worse, much of the success of the strategies developed will depend on what Canadian courts say about the inherent right of self-government. Canadian governments occasionally seem upset with ?judicial activism? (when they imagine judges are 'making new law' in their decisions, which legislatures see as their exclusive responsibility). But the fact remains that on contentious issues these governments often take their cues from what the courts say. 10 Ibid, at 3. 11 Michael J. Perry, The Constitution, the Courts and Human Rights (New Haven: Yale University Press, 1982). 12 Robert M. Cover, ?Violence and the Word? (1986) 95 Yale LJ 1601, at 1607.   7 dismiss or reject claims for procedural reasons, they are seldom convincing and do not provide certainty. If courts? decisions are unconvincing, the violence of legal interpretation is overwhelmingly profound.   The significance of this dissertation  This dissertation uncovers rich avenues for further research and its objective is to provide knowledge to those in charge of applying the law in the shadow of coercion.13 The aim of this study is to collaborate in the effort towards establishing more pluralistic legal systems through examining how these three cases were decided. It is hoped that this study may prove useful for policy-makers, lawyers, and judges in their roles of establishing, applying, and adjudicating Indigenous peoples? rights. This effort tries to justify the need to reconsider the way in which Indigenous peoples? legal claims are studied and calls for more flexible and responsive legal recourses that use Indigenous legal perspectives.   Organization of the dissertation The organization of the dissertation is as follows: the first chapter provides an introduction and briefly explains the objective of the study?its what and why; the second chapter discusses the methodology of the study?its how.   The main body of the thesis is divided in two parts: the first part includes chapters 3, 4, and 5, and the second part includes chapters 6, 7, and 8. Chapters 3, 4, and 5 describe these cases and provide the necessary context to understand the decisions. They are organized in alphabetical order and each deals with one case. Each of the chapters contains several sections as follows: the historical context of the communities, the claims, and the decisions. This material is crucial to understand the differences amongst the different legal systems, and also to explain the broader political and historical context of each claim. This frame of reference for each legal decision helps to explain why the claimants decided to plead their cases in the manner they did. The content provided about the claims discusses the legal expectations of                                                 13 Robert M. Cover, ?Foreword: Nomos and Narrative? (1983) 97 Harv L Rev 4, at 15.   8 each community and the legal difficulties they faced in bringing each case before the court. The last part concerning the reasons in each decision is important to understand the interpretation presented in this dissertation.   The second part of the dissertation, chapters 6, 7, and 8, discusses the decisions rendered in the cases together and explains my interpretation of them. In chapter 6, I explain in more detail the procedural reasons that impelled the courts to dismiss the plaintiffs? claims. The legal tone of this dissertation is set in this chapter and it is the most important chapter. Chapters 7 and 8 explain the legal principles used by the courts when deciding the cases. Chapter 7 briefly discusses the rules regarding evidence and representation that were applied in Delgamuukw, Nibutani Dam, and Zirahu?n that are deaf to the realities of the Indigenous plaintiffs. It mainly discusses the consequences of the rationale of legal autonomy and the central position of the individual in the Canadian, Japanese, and Mexican legal systems. Chapter 8 mainly focuses on the notions of Indigenous peoples? rights to self-government and self-determination, title to their land, and rights to cultural security and continuity within the framework of stiff and obsolete understandings of national sovereignty.  It is also about how the courts in these cases used the principles of ?public welfare? in Japan, and ?national unity? in Mexico.   Chapter 9 provides the conclusions of this study. In the conclusions, I advance the position that in these three cases, it was impossible for the plaintiffs not to fail on procedural grounds. Laws in Canada, Japan, and Mexico have been passed to protect Indigenous peoples but the process of adjudication fails to fairly examine their claims due to its inability to apply those procedural laws in relation to the larger context, reality, and legal understandings of Indigenous peoples. The courts in these cases subordinated Indigenous legal perspectives to a set of alien legal rights and principles and a dominant legal culture, unaware of the social function of all law.14                                                   14 I echo the words of John Borrows, Recovering Canada: The Resurgence of Indigenous Law, (Toronto: University of Toronto Press, 2002), at 15.   9 Chapter  2: Methodology and Law  Introduction In this chapter, I outline the perspective of this dissertation, the legal theory framework and the methodological practice that guided my research process.   In this dissertation, I examine concepts, mechanisms, and effects within the framework of what is considered law.15 Within the legal world, my perspective is that of a constitutional legal scholar.  Constitutional law is the law prescribing the exercise of power by the organs of a state.16   Constitutions express conceptions about social organization that affects all aspects of our lives and, in particular, our lives as members of a political society.17 They are laws (in the narrower sense) that best reflect how politics, culture, and law (in the broader sense) are inextricably intertwined.18 At the same time, constitutional law allows scholars to look at the sources of legitimation and validation of law in legal systems in ways that other legal areas do not. Constitutions are law but at the same time are political statements. Moreover, constitutional law is usually informed by                                                 15 Law is a system of primary rules that direct and appraise conduct together with secondary social rules about how to identify, enforce, and change the primary rules. Laws are matters of human artifice; they are social constructions, mainly recreated through language. Leslie Green in H.L.A. Hart, The Concept of Law (Oxford University Press, Clarendon Law Series, 2012), at xv. 16 Peter Hogg, Constitutional Law of Canada (Scarborough, Ontario: Thomson Canada, Student Edition, 2008), at 1. 17 Bakan J. et al., Canadian Constitutional Law (Canada: Emond Montgomery Publication, 2003), at 3. The text continues explaining: Constitutional law broadly engages the organization of our social life, we suggest that the constitution of a society is an assortment of important rules, principles, and practices relating to the governance of a society. Typically, constitutions deal with the structures, procedure, and powers of governmental institutions and the nature and scope of individual rights and responsibilities between collectivities and between collectivities and governments, such as the relationship between Aboriginal peoples and the Canadian state. In some countries, the constitution may also include protection for individual rights against the exercise of private power or impose economic and social obligations on the state, for example, a right to housing or a broader social charter... Constitutional provisions perform several different kinds of functions. In many cases, they establish legally enforceable obligations. They also serve to ground judicial decisions concerning the constitutionality of the exercise of power. Finally, constitutional provisions also perform a significant symbolic role, setting out fundamental values and aspirations of a country.   18 Ibid, at 3.  10 international human rights law. In certain countries, such as Mexico, human rights established in international covenants are considered constitutional law. 19 Constitutional scholars discuss issues of legitimacy, power, ideology, and the underlying social norms of a legal system. ?If law is a system of enforceable rules governing social relations and legislated by a political system, it might seem obvious that law is connected to ideology.?20 This dissertation is deeply concerned with the ideology driving the decisions in the three cases.   The plaintiffs in these three cases brought claims based upon the constitutions of each jurisdiction. The decisions reviewed in this study express each jurisdiction?s constitutional principles, ideologies and politics regarding the constitutional rights of minorities and Indigenous peoples. This work explores the ways in which judicial institutions delivered decisions that define ?Indigenous peoples? rights? within the constitutional framework of power and rights in each jurisdiction.   The study of law Legal reasoning is mainly a process of justification21 and interpretation.22 A legal argument is most usually built to convince23 and explains and adapts an original version of a rule to a certain situation.24 This dissertation is an interpretation of interpretations and will look at the different explanations of the sources and forces shaping justifications and rulings by the courts.                                                   19 Article 1 of the Constitution of Mexico, paragraph 2 establishes: The provisions relating to human rights shall be interpreted according to this Constitution and the international treaties on the subject, working in favor of the protection of people at all times. See also Jurisprudence 31/2011 of the Supreme Court of Justice of Mexico. 20 Christine Sypnowich, "Law and Ideology", (Fall 2010 Edition), The Stanford Encyclopedia of Philosophy by Edward N. Zalta (ed.). Online: <http://plato.stanford.edu/archives/fall2010/entries/law-ideology/>.  21 Derrida, J.,?Force of Law: The Mystical Foundations of Authority?(1990) 11 Cardozo Law Review, 919, at 985.  22 Julie Dickson, "Interpretation and Coherence in Legal Reasoning", The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.). Online: <http://plato.stanford.edu/archives/spr2010/entries/legal-reas-interpret/>. 23 Peter M. Tiersma and Lawrence M. Solan (ed.) The Oxford Handbook of Language and Law (New York: Oxford University Press, 2012), at 63. 24 Julie Dickson, supra note 22.    11 All legal studies are and need to be formalistic in the sense that they have to focus on ?formal rules? because the concept of law is intrinsically related to its formality.25 Law is a professional field and it is fundamentally concerned with concepts and meanings that are only useful for practical purposes in a closed legal system, such as the Canadian legal system. A legal concept does not mean anything outside of its own legal system, and each system uses different formalities in the process of transforming rules into law.26  The terminology is different in different jurisdictions, but everywhere terminology is a formality that establishes the field of law. The special wording used in the legal world is the most intrinsic characteristic of law.    The use of words is of ultimate importance to this dissertation. How do the courts use the words of the constitution and the words used by the claimants? How do the courts contextualize the claims of Indigenous plaintiffs and describe them? How and why do lawyers translate the claims and desires of Indigenous communities into the language of the law in order to build their cases? What wording is used to describe the context of the legal situation and rights of Indigenous communities?  All these questions are at the heart of this thesis and, in my opinion, their answers could bring a better understanding of Indigenous peoples? rights litigation.  In theory, the language of law is one that translates a certain conflicting situation into logical legal axioms in order to provide a solution to the controversy.27 The legal vocabulary is expected to contain all possible wordings and meanings necessary to study some human controversies and to solve them. This dissertation?s conclusions are critical of this approach. Certainly, such an expectation is not accomplished in the three cases studied. This was partly because the Indigenous communities coming to the courts had a distinctive understanding of their legal situation, their rights, and the laws, and the courts disregarded such understanding.                                                  25 I refer to ?formality? in the terms of Pierre Bourdieu and not in the strict sense of the school of formalism. Pierre Bourdieu, ?The Force of Law: Toward a Sociology of the Juridical Field? (1987) 38 Hastings JL 814. 26 For example: the passing of a law in a congress, the signing of a treaty, or the establishment of a legal concept through common law.  27 Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Leal Justification (Oxford: Clarendon Press, 1989).  12  The legal theory that guides this study is legal realism, which establishes that law should be studied as part of an entire social phenomenon. This school of thought has become highly influential in legal scholarship in North America, Japan, and Mexico. Legal realism is considered to give a functional perspective of law; it makes use of empirical study in its broadest sense and understands the study of law as an interpretive effort.28 The approach taken in this study uses interviews, field trips, reviews of decisions and other legal documents, procedures at the courts, and a literature review.    Moreover, this study is based on the premise that law is a cultural phenomenon: Law is a significant description of the way in which a society analyzes itself and projects its image to the world. It is a major articulation of a culture's self-concept, representing the theory of society within that culture.29  I interpreted all of the laws and legal systems described in this study as having a broad social role that expresses the values and mores of a certain culture. Each of the three legal systems studied in this dissertation interprets power in different terms. The three legal systems have grown in three different cultural, geographical and historical contexts. This leads to the next important explanation of the perspective of this study: the case study.  Comparing We understand words and we learn through comparing; comparisons are unavoidable. How we compare defines what we learn. Current comparative constitutionalism is still problematic in many ways, mainly because we do not yet have a ?terminology which adequately reflects awareness of and sensitivity to the multiplicity of current-                                                28 William W. Fisher, et al., American Legal Realism (New York: Oxford University Press, 1933), and V. Nourse and G. Shaffer, ?Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?? (2009) 95 Cornell Law Review 61. 29 J. C. Smith and D. N. Weisstub, The Western Idea of Law (Toronto: Butterworths, 1983), at vii.  13 state experiences and constitutional cultures.? 30  Few authors are committed to blending knowledge of national history, custom, religion, social values, and assumptions about government, positive law, economic force, and power politics to render a country?s constitutional life easily comprehensible for a foreign audience.31 Due to these issues, legal comparative studies have tended to reinforce the difference as deficit model, leaving little room for the validation of different ways of studying law, organizing law, legitimizing law, legislating, and deciding legal conflicts.32    This dissertation presents historical, political, and social contexts mostly using local sources for their explication. A summary of the contexts of the cases is presented, followed by a discussion in which the commonalities are examined independently. This study does not seek to emphasize the differences among the cases; on the contrary, it focuses on similarities in the legal situations, problems, concepts, and principles behind the different rules and decisions of each case.   Furthermore, this study does not intend to compare the cases and draw causal inferences from their commonalities but to present each case separately. It does not seek to determine if particular regulations work better or worse than others but to find common dimensions observable regarding a certain legal phenomenon. I kindly ask readers to consider the language used in this dissertation broadly and to see it as inclusive of different realities and visions. I also ask them to be prepared to read about each case using different vocabulary that refers to marginally or considerably similar concepts as it will be more broadly explained below.                                                  30 Lawrence Beer, Human Rights Constitutionalism in Japan and Asia (Kent, UK: Global Oriental 2009) at 8. In other words, there are no theoretical abstractions for general analytical purposes that describe global empirical narratives, the perception of underlying patterns, the operation of power, or the latent affinity between apparently divergent institutional arrangements. 31 Ibid. at 4. 32 Ibid. Beer uses the term ?residual chauvinism? when reflecting the trend of the views of Europeans and Americans regarding constitutionalism in Asia.  14 2.1  Case studies  This research is a qualitative interpretive case study. ?A case study is an in-depth study of a single unit (a relatively bounded phenomenon).?33 Qualitative in-depth studies explain the features of a specific event: the what, where, when, why, and how it occurred.34 They seek to understand or explain outcomes in single cases. This study aims to achieve an in-depth understanding of the cases of Delgamuukw, Nibutani Dam, and Zirahu?n.  Interpretive studies pay careful attention to culturally embedded intentions of individual or group actors in the given settings under investigation.35 Interpretive studies stand on the premise that the baseline realities for both the observer and the observed in the human sciences are practices and socially constituted actions,36 and that such practices and actions, cannot be identified in abstraction from the languages used to describe them.37 This dissertation interprets the decisions in these three cases as a multidimensional phenomenon, wherein mythic, dramatic, rhetorical, and philosophical elements play significant roles.38   Interpretive case studies are more useful for generating hypotheses than for testing them.39 This dissertation discusses the different concepts used in the decisions to generate informed interpretations about these legal cases, which could be useful in the creation of hypotheses regarding the litigation of Indigenous peoples? rights in the world.                                                   33 John Gerring, ?What is a Case Study and What is Good for?? (2004) 98 American Political Science Review 2, at 341. 34 Ibid. 35 Theda Skocpol, "Emerging Agendas and Recurrent Strategies in Historical Sociology," Vision and Method in Historical Sociology (Cambridge: Cambridge University Press, 1984), at 368. 36 Ibid. See also Charles Taylor, ?Interpretation and the Sciences of Man,? in Paul Rabinow and William Sullivan, Interpretive Social Science, a Second Look, (Berkeley: University of California Press, 1987), at 53:  The object of a science of interpretation must have a sense distinguishable from its expression, which is for or by a subject.   37 Ibid. 38 J. C. Smith and D. N. Weisstub, supra note 29, at vii. 39 Adam Przeworski and Henry Teune, The Logic of Comparative Social Inquiry (Pennsylvania, US; Krieger, 2001), at 69.  15 The study focuses on the phenomenon of Indigenous peoples? rights litigation through the legal interpretation of the why and how of the dismissal or rejection of the claims in these three cases. The dimensions of the study mainly regard legal issues that will be further explained in each section and are discussed in relation to each of the decisions studied. They include: legal recognition of Indigenous peoples? rights, cause of rejection of the claims, rules of dismissal, and legal strategy within the larger social movement.   The three cases are all legal cases that were well designed and pursued by the lawyers and activists who brought them to the courts. They are also cases thoroughly studied by courts in the three jurisdictions, and some very relevant information can be obtained and interpreted from this study. The focus of this study is to observe the process by which the decisions are achieved and to start exploring the possible existence of a pattern in the way the process is implemented. The methodological aim of this study is to interpret the legal reasoning of the decisions focusing on the language used by the courts and the political and legal environment in which these decisions were rendered.     The three cases are different from each other and happen in different social and legal environments, which presented a challenge in writing about them in one paper. The issues discussed in the cases studied in this dissertation record ideological conflicts and specific legal languages that are inherently different from each other.40 The communities and the characteristics of the legal systems are also different from each other. The study of these three cases provides a challenging but interesting scenario for revealing their stories together.                                                   40  Relations des Jesuits, Reprint of the 1856 edition, Montreal: Editions du Jour, 1972, Vol 5, chapter 7, pp. 27-34, translated by Denys Delage in ?Aboriginal Influence on the Canadians and French at the Time of New France? in Gordon Christie Aboriginality and Governance, A Multidisciplinary Perspective from Quebec (British Columbia, Canada: Theytus Books, 2006), at 56: The world is full of variety and inconsistency. We never find solid ground. If someone climbed up a tower high enough to see all the nations of the earth, he would not be able to say which are wrong and which are right, which are crazy and which are wise among the variety and strange patchwork.  16 The differences among cases and the wording of this dissertation There are a plurality of systems and regulations that continuously shape the different legal realities of Indigenous communities in the world. The cases studied in this dissertation emerged in such a variety of legal practices and institutions. The Canadian, Japanese and Mexican legal systems use different legal languages to refer to Indigenous peoples and claims, and the Indigenous communities in these three jurisdictions organize in various ways.  The colonization process in each of these regions happened under different legal paradigms, but all dispossessed Indigenous peoples of their land. 41  Such dispossession happened within the international political context of a race amongst powers to obtain territories and a social context that discriminated against communities of Indigenous peoples living in many of the territories that were colonized.   British Columbia in Canada is a common law jurisdiction, while Japan and Mexico are civil law jurisdictions. Canada has an adversarial system of litigation, while Mexico has an inquisitorial system and Japan has a mix that leans more towards an inquisitorial system of litigation. 42  In Canada and Mexico, constitutional law prescribes the scope of the protection of Indigenous peoples? rights, but not in Japan, where the constitution does not recognize the existence of Indigenous peoples, but only of minorities.                                                   41 See Seamus Deane in Terry Eagleton, Frederic Jameson, and Edward Wadie Said, Nationalism, Colonialism, and Literature (Minneapolis, MN: University of Minnesota Press, 1990). The British, Spanish, and Japanese colonization processes happened under different political, economical, and social circumstances. The British colonization process was mainly based on the idea of law of common law and the British Crown, while the Spanish colonization process was very much based on a continental idea of law and followed a particularly Catholic character. The Japanese colonization process is different in that it is a mix of legal policies taken from European countries and the US. Still, the process of colonization is importantly a process of dispossession.  42 In the adversarial system, the parties produce the information or ?evidence? that the trier of fact will use to make its decision as explained in David M. Paciocco and Lee Stuesser, The Law of Evidence (Toronto, Canada; Irwin Law 2008) at 1. In the inquisitorial litigation system, the investigation of the facts in a case does not depend solely on the parties. In this system it is also the responsibility of the court to make sure that all necessary evidence is examined. See John O. Haley, The Spirit of Japanese Law (Athens GA: University of Georgia Press, 2006) to understand more about the Japanese legal system in this regard.  17 The plaintiffs in these cases filed their claims according to the rules in each legal system and their own particular rules. In the Delgamuukw case, forty-eight individuals acting on behalf and as representatives of the members of their houses and nations presented the case. In the Nibutani Dam case, two individuals presented the claim as fee simple owners. In the Zirahu?n case, the Zirahuen Community as a singular legal entity presented the claim.   The three countries define the extension of Indigenous peoples? rights in very different ways. A ?right? is understood as a ?legally enforceable claim that another will do or will not do a given act; a recognized and protected interest the violation of which is a wrong.?43 ?It may include a power, authority, privilege, benefit and remedy.?44 The notion of ?right? that I use in the following pages implies tenability in the courts. I usually refer to ?right? within the concept of Eurocentric45 legal systems and as recognized by the states of Canada, Japan, and Mexico, unless noted.   Even though the constitution in each country is different from the others, when I use the term ?constitutional rights,? I am not only concerned with the rights as established textually in the Constitutions of each state, but also with the variety of ?rights? as interpreted by the different courts and at different moments in these cases as of ?constitutional importance.?46                                                   43 Bryan A. Garner (Ed.) Black?s Law Dictionary (St. Paul, MN: Thompson Reuters, 2009), at 1436. 44 The Dictionary of Canadian Law (Toronto: Carswell, 2011), at 1136. 45 I have decided to use the term ?Eurocentric? instead of ?Western? in most sections for the objectives of my dissertation. Both concepts are troubling for different reasons. The Gitksan and the Pur?pecha peoples are in what readers consider the ?West? but they are not usually included in the category of the ?West.? I also recognize that much of the Eurocentric legal culture was developed in the Middle East and other parts of Asia, and not only in Europe. I refer to the Eurocentric legal culture as the one that has evolved within the context of two highly distinctive traditions: the Judeo-Christian and the Greco-Roman. This legal culture includes the common law, and the civil law systems, which are among the most widely known and practiced. It had its beginnings as a dominant legal culture in Europe and has later developed in the US and other countries. I also recognize that each country has adopted their legal system to their own cultural and physical realities in a certain degree. The concept ?Eurocentric? refers to a legal system that is based in European tradition, history, and culture, and serves the European societies of this tradition, history, and culture best though it has been adopted in other states as well.  46 I also use the term ?constitutional court,? which is any court that interprets the constitution (creates meaning using the wording of constitutions). Most usually, lower courts use the meaning that upper courts give to the constitution, but in some jurisdictions, sometimes, lower courts also interpret the constitutions. In such case, the thesis will also call them constitutional courts.  18 In British Columbia, Canada, Indigenous peoples? rights have been recognized since the end of the 18th century. In Japan, the regulation of the Ainu is specific to the Ainu as an ?ethnic minority,? and it is rather recent, after the decision in Nibutani Dam, and quite limited. Before that, the law labeled them as ?Former Aborigines.? In Mexico, Indigenous peoples? rights have existed since the Spanish arrived in Mexico in the 16th century, and have undergone an important development since the beginnings of the 20th century.  The legal labels are different in each jurisdiction. The Canadian term ?Aboriginal title,? which only pertains to Indigenous peoples, does not exist in Japan or Mexico. The Ainu people were only recognized in Japan in 2008 through a resolution of the Parliament,47 and have not used communal forms of property since their lands were legally divided and distributed in the 19th century and the beginning of the 20th century.48  In Mexico, there are communal forms of property (communal and ejido properties) that do not exist in Canada or Japan. The communal and ejido forms of property in Mexico are not exclusive to Indigenous peoples.   The label ?Indigenous? that I use in this dissertation requires explication. ?Indigenous peoples? is not a homogenous category. It is a category formed by very diverse and heterogeneous groups in all senses of the word. The plaintiffs studied in these three jurisdictions exemplify this reality. The Indigenous plaintiffs in these cases are considerably different from each other in their organization and legal cultures. ?Indigenous peoples? has been a term used to refer to peoples and their communities who lived in certain territories, such as the American continent, before Europeans arrived and formed colonies.49 The United Nations (UN) recognizes the importance                                                 47 See the Japanese Upper House Resolution of June 6, 2008 (No. 169th Session). Online: <http://www.sangiin.go.jp/japanese/gianjoho/ketsugi/169/080606-2.pdf>. [Originally in Japanese, see bibliography for title in original language.] 48 Through the Hokkaido Land Estates Regulation, 1872;	 Hokkaido Land Sale and Lease Regulation, 1872; and, the	 Hokkaido Former Aborigines Protection Act, 1899. [Originally in Japanese, see bibliography for title in original language.] 49 The most cited definition is by Jose R. Martinez Cobo, the Former Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his famous Study on the Problem of Discrimination against Indigenous Populations (New York: United Nations, 1987):   19 of allowing Indigenous peoples to self-identify as such, and thus no UN-system body or organ has adopted an official definition of ?Indigenous.?50 Different covenants and international institutions use different definitions according to their objectives and goals.   In this dissertation, I also use other terms that are used in Canada, Japan, and Mexico to refer to Indigenous peoples. In Canada, the terms ?Aboriginals,? ?Natives,? ?First Nations,? and ?First Peoples? are used to refer to communities who lived in what is now the Canadian territory long before Europeans first arrived. Other terms used in Canada are ?Inuit,? ?M?tis,? and ?Indian.? In Japan, the most appropriate term is ?Indigenous peoples.? 51 In Mexico, the equivalent term is ?Indigenous peoples,? but historically the laws have used the terms ?tribes? and ?communities.?   In all of these different countries, each band, community, or peoples is usually referred to by its name. In Japan, the word ?Indigenous? is barely used; ?Ainu? is the preferred word. There is a large volume of literature on the Indigenous movement in                                                                                                                                       Indigenous communities, peoples, and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors: a) Occupation of ancestral lands, or at least of part of them; b) Common ancestry with the original occupants of these lands; c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an Indigenous community, dress, means of livelihood, lifestyle, etc.); d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); e) Residence on certain parts of the country, or in certain regions of the world; f) Other relevant factors. On an individual basis, an Indigenous person is one who belongs to these Indigenous populations through self-identification as Indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group).  This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference. 50 The UN system has developed a modern understanding of this term based on the following: 1) self- identification as Indigenous peoples at the individual level and accepted by the community as their member; 2) historical continuity with pre-colonial and/or pre-settler societies; 3) strong link to territories and surrounding natural resources; 4) distinct social, economic or political systems; 5) Distinct language, culture and beliefs; 6) form non-dominant groups of society; 7) resolve to maintain and reproduce their ancestral environments and systems as distinctive peoples and communities. See Factsheet of the 5th session of the United Nations Permanent Forum on Indigenous Issues. Online: <http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf>.  51 The concepts used in Japanese do not include the term ?Native? that could have a derogative meaning, which the term ?Ainu? also had for some time. This is why the Ainu Association of Hokkaido changed its name for some time to the ?Hokkaido Utari Association.?   20 Mexico, but for better understanding in anthropological, ethnical, sociological, and legal terms, the proper names of each nation are used: Pur?pecha, Huichol, Zapoteco, Mixe, Tzotzil, Seri, etc. In many cases, the specific name of the community within the nation is required, as the Zirahu?n Community.   There are many goals that most of these groups have in common. The best example is the effort of Indigenous communities from different parts of the world to create the UN Declaration on the Rights of Indigenous Peoples in 2007. This speaks not only of communities confronting similar issues but also of similar visions to solve those issues and a common belief in an idea of how to use the law to achieve their common ends.  These differences in the legal concepts and processes in each jurisdiction reflect the different efforts that have been carried out in different countries to protect Indigenous peoples? rights. They also reflect the political pressures put on the states? authorities regarding a shameful past that discriminated against Indigenous peoples and unilaterally took their lands.  The cases were selected mainly due to the fact that in each of them, the plaintiffs argued issues regarding their constitutional rights to their ?ancestral territories.? They all sought some kind of recognition of their ?Indigeneity? and the rights to their territories. Moreover, in all these cases, the courts gave procedural reasons for leaving their claims unresolved. All of the final decisions in them were important in each jurisdiction.52 They are contemporary cases, and were adjudicated within an                                                 52 The decisions in the three cases have established important precedents to the litigation of Indigenous rights in the jurisdictions of Canada, Japan, and Mexico. They are all cases interpreting the rights of Indigenous peoples in these three countries today. Delgamuukw is the case that currently defines how Aboriginal title is to be proven in the courts. Although the definition is not completely settled, the definition of what is Aboriginal title is one of the contested issues in the William case (William v British Columbia, 2012 BCCA 285) reviewed in November 2013 by the SCC. The Delgamuukw case is among the most significant cases in Canada in the area of Aboriginal rights, particularly regulating Indigenous nations such as the Gitksan and the Wet?suwet?en that have not signed a treaty with the government regarding their land. This issue is not yet settled; Nibutani Dam is the first case that recognized Ainu as Indigenous peoples and the first to recognize their entitlement to certain rights to their culture. The legal landscape of Ainu rights in Japan changed significantly after the decision in the Nibutani Dam case; nevertheless, no other court after has gone as far (even by half) as the decision in Nibutani Dam and the decision is not considered legally binding. Zirahu?n is the only amparo solved by the Second Chamber of the Supreme  21 international and national legal framework that seeks to protect their peoples? rights. In all cases, the plaintiffs relied upon constitutional, international, and secondary laws, which in their view protected them.  2.2 Interviews and visits  Each legal system serves each social system in ways that a foreign academic is able to observe only after careful study. Thus, all interpretive endeavors ought to be collaborative in principle. This kind of study is only possible thanks to the support of academics in the area in each jurisdiction studied and the support of the lawyers involved in the cases. The supervising committee of this dissertation is comprised of two constitutional law specialists on Canada and Japan and one political scientist specializing in Latin America. I have previously conducted research projects concerning the legal systems of Mexico and Japan, which has been useful in this study. I am able to speak the languages mainly used by the lawyers and courts in these three cases: English, Japanese, and Spanish.    This study included visits to each community and interviews with scholars and lawyers who have studied the cases and/or were engaged as counsel to the plaintiffs. The interviews complemented my perspective as a Mexican legal scholar studying the legal systems of Canada and Japan and enabled me to trace the processes of the cases. The set of interviews with lawyers and scholars bring their voices and opinions into this study and have been an important source of understanding.   The interviews have been essential in the assimilation of the legal systems and the case law studied, and the interviewees have all made significant contributions to guiding my perspectives, methodologies, and knowledge of each legal system. The persons interviewed for this study were selected from a list of lawyers working in the respective cases and a list of legal scholars who have studied the cases. The names of the lawyers interviewed were obtained from the decisions rendered, all public                                                                                                                                       Court of Justice in Mexico, among the many that were presented against the constitutional reform of 2001. From its resolution, several isolated theses (a kind of legal directive created through precedents) were produced interpreting the scope of Indigenous peoples? rights in Mexico that are now used for other cases by lower courts.  22 documents. I conducted interviews with four lawyers who worked on the cases. The fifth interview was with Professor Teruki Tsunemoto, a legal expert in Ainu issues in Japan. Professor Tsunemoto was contacted directly through the public email address on the website of the School of Law of Hokkaido University.   I also visited the communities. I visited the towns of Smithers, Ksan, Hazelton, Kispiox, and Kitwanga in British Columbia, the heartland of the Gitksan and Wet?suwet?en, in October 2012; the towns of Nibutani and Biratori in Hokkaido, Japan in August 2011 and August 2012; and the town and lake of Zirahu?n in Michoac?n, Mexico in June 2011.   I did one interview with Professor Michael Jackson in two sessions in November 2011 in an office in the University of British Columbia (UBC). Professor Jackson participated as counsel to the Gitksan in the case of Delgamuukw and has also published academic work regarding Indigenous law and the Delgamuukw case. He was the main drafter of the opening arguments of the Gitksan chiefs in the Supreme Court of Canada (SCC). He started working on the case on the invitation of Mr. Stuart Rush, lead counsel of the Gitksan and Wet?suwet?en in the case. The interview lasted three hours and was conducted in English.   In December 2011, I interviewed Mr. Stuart Rush in his office in Gastown, Vancouver. The interview lasted three hours. Mr. Stuart Rush started working with the Gitksan at the end of the 1970s mainly on criminal law cases regarding allegations of illegal hunting and fishing by community members. He was asked by the Gitksan and Wet?suwet?en leaders to advise them on how they could stop the occurrence of the large number of criminal law cases affecting the community for hunting and fishing activities, which is how he was brought in to advise them in the Delgamuukw case.    I have spent most of my research time in British Columbia in Canada; nevertheless, I have only visited a part of the territory claimed in the Delgamuukw case a couple of  23 times (May 2008 and October 2012). The first part of the Delgamuukw case was heard in the city of Smithers, which I visited in October 2012. Near Smithers, there are several museums and cultural centers of the Gitksan, such as the Ksan village and museum, which I also visited.   With respect to the Nibutani Dam case, I interviewed Mr. Kiyoshi Fusagawa, a counsel to the plaintiffs in the Nibutani Dam case (Mr. Kaizawa and Mr. Kayano) in August 2011. The interview was held in Japanese in one session of one hour and a half in his office in central Sapporo. Mr. Fusagawa started working on this case on the invitation of Mr. Takashi, who was invited to the working team by Mr. Hiroshi Tanaka, the main lawyer in the case. Mr. Fusagawa had never advised an Indigenous person before, and since the Nibutani Dam case, he has advised Indigenous plaintiffs in two other cases. I also had more informal conversations with Mr. Koichi Kaizawa, one of the plaintiffs in the Nibutani Dam case, and with Mr. Morihiro Ichikawa, another lawyer who participated in the case, during my attendance at a conference in Sapporo in August 2012.   In August 2011, I did an interview with Professor Teruki Tsunemoto, a legal scholar who has studied the case and is the author of many of the articles that have been published regarding it. This interview lasted in total three and a half hours and was held mostly in Japanese; also in attendance was Professor Ochiai, a constitutional scholar also studying Ainu cases.   During my visit to Hokkaido, Japan, I visited the museum established by Mr. Kayano, one of the plaintiffs in the case, and the research center that has been established in Nibutani regarding the impact of the Dam. I stayed with some Ainu people in a ryokan (a traditional Japanese small hotel) and had the opportunity to talk to some researchers, non-Indigenous, and Ainu people who were there when the case was decided. They all surprised me with very informed opinions on the case.    24 Regarding the Zirahu?n case, I did one interview in two sessions in Morelia, the capital city of the state of Michoac?n in June 2011 with Mrs. Eva Casta?eda Cort?s, the only surviving lawyer who participated in the making of the claim of the Zirahu?n Community. The interview was held in Spanish. She is the widow of Mr. Efr?n Cap?z Villegas, the main lawyer of the Community from the late 1970s until his death in 2005 and the main drafter of the claims. She worked on the case assisting Mr. Cap?z Villegas.   Mr. Cap?z Villegas and his wife were founders of the Uni?n de Comuneros Emiliano Zapata (UCEZ), a union of Indigenous communities that collaborates with the Zapatista Indigenous Movement in Mexico. The Zirahu?n Community is also a founding member of the Uni?n.   The interview took place in the lawyer?s office/home and lasted one hour and a half. The lawyer also invited me to a meeting of the Zirahu?n Community, which I attended after the last interview. I visited the town and lake of Zirahu?n. I transcribed a large part of a meeting of the General Assembly of the Community for them. During the session, the members discussed the occupation of some pieces of land, the acceptance of new members of the Community, and the legal cases regarding complaints against the illegal taking of water from the lake and the cutting of trees in the surrounding area.   The places where I wrote and the language used to explain the issues below have defined importantly what this study is about. Even though I wrote some parts of the dissertation and discussed parts of my dissertation with Japanese and Mexican scholars in Sapporo, Hokkaido in Japan and in Mexico City, most of the writing was done in Vancouver, British Columbia, Canada. The purpose of this dissertation is to obtain an advanced degree in a Canadian university, and thus, the main audience of this text has been shaped by comments and discussions held in a Canadian legal academic environment. The writing is in English and mainly uses concepts and understandings within the Canadian legal academic environment. If I had written this  25 dissertation for a Japanese or Mexican university, most probably the approach and layout of the text would be different. This would be not only because language defines how and what are we able to convey but also because the expectations of this kind of study are different in different parts of the world. The cultural environments shape the studies in the most unexpected ways. I have noticed that in the end, this text is largely focused on the Delgamuukw case since I use it as a point of reference for much of what I explain to the audience who most commonly hears my work. This is why I think that this study is particularly useful in Canada.   I submitted the design of my methodology to the Human Ethical Review of the UBC Office of Research Ethics in May 2011, extended it in May 2012, and closed it in May 2013.     2.3 Literature review and other sources The legal decisions were obtained from the Internet through a simple search in the websites of the courts that decided the cases. I made a request to the SCC for files that did not appear publicly on the Internet on the Delgamuukw case. Most of the information on the Nibutani Dam case was obtained from a compilation of written documents presented in the case that was published as a book by the plaintiffs and the main lawyer after the decision, and the publication of a talk given by Mr. Hiroshi Tanaka, the main lawyer in the Nibutani Dam case. The translation of a summary of the decision made by Mark A. Levin has been the text used when citing the decision in the Nibutani Dam case. In the case of Zirahu?n, I made a formal request for the entire file of the case through the information portal of the Supreme Court of Justice of Mexico (SCJN). I have done all of the translations of this last decision in this dissertation.   I consulted several laws, proclamations, orders, resolutions, treaties, covenants, conventions, reports, and like documents during the research process for this study. Some of those laws have been abrogated or reformed, even before these three cases came to the courts, but have been consulted with the intent of understanding the legal  26 historical context of the communities involved in the cases and the broader context of Indigenous peoples in each country. At the beginning of the study and as I started to navigate through the different rules and rights regulating the relationships of Indigenous peoples, their territories, and the state, I started noticing that some laws were considered crucial while others were constantly disregarded in the courts. At the same time, certain laws shaped the legal options of the communities in manners that defined the translation of their political and cultural expectations into legal expectations.   For example, most of the cases brought to the courts in Canada have been solved using the decisions of previous cases and relying little on statutory law. This is in the nature of a common law system. At the same time, most of the decisions of cases in Japan have used many regulations on cultural rights due to the lack of regulations in other areas. It has been crucial to do preliminary research on the legal regulations because it is only then that an academic can start understanding the legal options for these groups.    The literature reviewed for this study is varied and very broad. I will only mention in this chapter the sources that have shaped my perspective or greatly contributed information on the cases and the constitutional relationships created by the state and minorities.53   Regarding the Delgamuukw case, I have reviewed several PhD and Master?s theses, including that written by Patricia D. Mills, who also has written a book on a similar topic, and the theses by Donald M. Smith, Russell J. Binch, and Joan Snape. The writings of Don Monet and Skanu?u (Ardythe Wilson), Bruce G. Miller, Robert Van Krieken, Dora Wilson-Kenni, Robin Ridington, Robin Fisher, Dara Culhane, and Julie Cruikshank have been very informative and have shaped the perspectives of this dissertation. The writings of John Borrows, Michael Asch, Gordon Christie, Bruce Ryder, and Kent McNeil are basic to this dissertation.                                                  53 Details of the sources are available in the Bibliography of this dissertation.   27  For a broader perspective of the Canadian legal and constitutional system, I have also consulted the works of Peter W. Hogg, Richard Devlin, Robin Elliot, Michael Perry, Guy Laforest, Patrick Monahan, and some sources on Canadian evidence law, such as the book by David M. Paciocco and Lee Stuesser.   For the Nibutani Dam case, I have examined most of the work of Teruki Tsunemoto, Mark Levin, Hitoshi Kikkawa, Hiroshi Maruyama, and Georgina Stevens. The article ?The decision of Nibutani Dam and afterwards,? written by Hiroshi Tanaka and published in 2007 by the Academia Juris Booklet series in Japan, explains certain decisions taken while the claim was being studied in the courts and also the perspective of the plaintiffs and the lawyer and has been crucial for this dissertation.   Professor Tsunemoto?s perspective has been important for understanding how Japanese people see the need for reconciliation between the Ainu and the mainstream Japanese society. His legal perspective places the Ainu as a minority and his current main concern seems to focus on how the law can capture such a difficult concept as ?identity.? He has collaborated with the Committee on Ainu Policy Promotion established by the Japanese Parliament, he has served as director of the Center for Ainu and Indigenous Studies in Hokkaido University?the only one of its kind in Japan?and he is engaged with researchers from other parts of the world on Indigenous peoples? issues.   In 2010, the Center of Ainu and Indigenous Studies of Hokkaido University published a report on the living conditions and consciousness of present-day Ainu, which has been an important source of information. The government had previously published similar reports that have also been useful for this dissertation. The municipality of Biratori has also published some of the results of the surveys and studies carried out for the construction of the Biratori Dam. These sources are mainly focused on environmental impacts, but the surveys and studies had a significant participation from the Ainu community in the area and thus were important when  28 looking at the process of consultation that is being carried out since the Nibutani Dam case was decided.   Both Mr. Kaizawa and Mr. Kayano, the plaintiffs in the Nibutani Dam case, published books that describe their perspectives on the several issues that Ainu people confronted daily and both have been interviewed by various scholars, such as Julian Kunnie. I have reviewed several sources on the Japanese legal system and constitutional law such as the ones written by John O. Haley, Shigenori Matsui, Hiroshi Oda, Yoichi Higuchi, and David Johnson.  Unlike the Nibutani Dam and Delgamuukw cases, there are no articles or books that analyze the case of Zirahu?n. There are a few articles that study the phenomenon of the constitutional challenges made to the reform in 2001, such as the one written by Jorge A. Gonz?lez Galv?n. Most of the legal studies consulted for this dissertation are articles that analyze and study the reform, such as the ones written by Jose Ramon Cossio, Francisco Lopez Barcenas, Miguel Carbonell, Guillermo de la Pe?a, and Mar?a del Carmen Ventura Pati?o.   I have relied heavily on a thesis written by Brenda G. Guevara S?nchez for the Universidad Michoacana de San Nicol?s de Hidalgo. This dissertation is a historical study of the Zirahu?n Community?s legal claims for land. I have also consulted some sources by Margarita Z?rate Vidal, Gunther Dietz, Eduardo N. Mijangos D?az, David Spencer, Roseberry William, among other sources to enhance my understanding of the dynamics of social Indigenous movements in Mexico.  Regarding Mexican constitutional law, the main sources used in the writing of this dissertation are those by Emilio Rabasa, Jose R. Cossio, and Luis C. Sachica.  Issues of philosophy and law and sociology and law shape the last two chapters of this thesis. The following writings have been most useful in helping me frame the issue and develop my conclusions: Forms of Action in Common Law by F.W. Maitland; all the works by Robert Cover; Hans Kelsen?s Theory of Law and State and  29 the Pure Theory of Law; a few works by Foucault, particularly his interviews on power/knowledge; Pierre Bourdieu?s The Force of the Law; J. Derrida?s Force of Law: The Mystical Foundation of Authority; Word of the Law by Dennis R. Klinck; General Theory of the State by G. Jellinek; Will Kymilicka?s Multicultural Citizenship: A Liberal Theory of Minority Rights; Struggles for Recognition in the Democratic Constitutional State by J. Habermas, completed with the reading of some of his previous work on law and the state; James McHugh?s Comparative Constitutional Tradition; H.L.A. Hart?s Essays in Jurisprudence and Philosophy and The Concept of Law; European Legal History by Robinson, Fergus & Gordon; the small text by R. Wacks on the Introduction to Philosophy of Law; Lawrence Friedman?s works on sociology of law; all the works by John Borrows; and, Ian Haney Lopez? work on race and law.   Regarding methodology, I have reviewed the literature on comparative analysis and case study analysis by Adam Przeworski, Charles Taylor, Charles C. Ragin, Alexander L. George, Andrew Bennett, John Gerring, Henry Teune, Theda Skocpol, Anne Colby, Richard Jessor, Richard A. Shweder, Henry E. Brady, David Collier, Barbara Geddes, Andrew Bennet, Arend Lijphart, John S. Mill, and Sidney Verba.   For the historical summary of the development of the notions of sovereignty, legal autonomy, and the relevance of the central position of the individual in the law, I have used mainly the texts by David N. Weisstub, J.C. Smith, Ellen Goodman, Shirley R. Letwin, van Eikema Hommes, Ignacio Bernal, and S.F.C. Milsom.  2.4 About the researcher/author After many years in school, asking questions and trying to learn different languages, the laws, and judicial procedures of different legal systems, I have come to realize that our ways of understanding others is always a reflection of ourselves and not really about the others.    30 Since this is an interpretive endeavour, the process of designing the methodology of this research has been intended to be reflexive;54 I understand that the reflexive process of research is a continuing process of exploring the implications of our perspectives, assumptions, and beliefs in the research performed.   To write this dissertation I needed to deeply understand the cases; know the laws and the courts? structure of the three countries; the three languages used in the decisions; travel and find the required funding; communicate extensively with the interviewees and professors working with me; assessing and decide the format of the interviews; and, organize the dissertation in a way that made sense to the readers and at the same time explain the most of the three different cases and the decisions. There were also collateral issues that, in the process of writing this dissertation, preoccupied my mind. Among them was the process of becoming aware of my own assumptions; the necessary reflexive process of writing about other peoples? cultures and laws from my own perspective and position; the importance of recognizing that the writing of this thesis has been a matter of construction and not of discovery; and the continuous effort to be as honest and clear as possible about my construction of the text.   The following paragraphs outline my personal decisions regarding methodological issues during the designing and writing process of this dissertation. My main interest as a legal researcher is to imagine other ways of doing law. The questions that drive my research are: How could law evolve and perform less colonially? How could a constitutional system allow a variety of understandings about law, rights, and realities? How can courts better examine context in controversies regarding minorities? In my view, law could act less colonially if it were about how to adapt the system of resolution of conflicts for each controversy and were less charged with a system set of values and beliefs.                                                   54 Liz Stanley. The Auto/Biographical I: The Theory and Practice of Feminist Auto/Biography, (Manchester, UK: Manchester University Press, 1992). According to Liz Stanley, reflexivity is the process of critical reflection on the self as the research instrument.   31 This research is about many of those issues. Through the study of the selected three judicial cases, I have come to learn a good deal about how contrasting legal and cultural systems confront each other and how law acts upon the ?different.? I have also come to understand the crucial importance of the participation of Indigenous minorities in legal systems today. My motivation is to collaborate with the efforts of those who are trying to find better ways in which the law can be used in the interaction between communities of minorities and the state.   All lawyers interviewed for this study met me first to talk to me and get a sense of my interests. They all asked directly or indirectly about my views regarding the cases. I think that in all cases, the interviewees thought of me as an outsider. I did not identify myself as an Indigenous person, I had never participated actively in any Indigenous association or worked as a lawyer in any case that involves Indigenous issues, and in two thirds of the cases, I was not a national of the jurisdiction, I was a foreigner. Even in Mexico, Eva Casta?eda Cort?s thought of me as an outsider due to the fact that my research was being done in a foreign university and under foreign paradigms. Lawyers and scholars would explain the cases to me as if I knew nothing about the law in each jurisdiction. In all the meetings conducted in this research, I never identified myself as an Indigenous person, but explained that I felt certain identification with many proposals, claims, and struggles of different Indigenous peoples. I introduced myself as a researcher in Japan, Canada, and Mexico, and as a lawyer from Mexico. All interviewees were critical of my approach and my views, and did not hesitate in contrasting their opinions with mine. The dialogues were cordial and always informative in both directions because most interviewees were curious about the other cases in other jurisdictions.   There is no doubt that the process humbled me, which was a very enjoyable experience. The most important lesson I took during my field work was that there is no neutral or objective research or legal endeavor; I became fully aware that we are all ideological entities responsible for our work and the impact it can have in the lives of the peoples that we write about and argue about in the courts.   32 Part I: The Three Cases in Context I realize that we live in three worlds: the Eurocentric imposed world, the Aboriginal world and the world in between where there is some overlap or integration?that space that is sometimes fraught with misunderstandings and conflict but has potential for understanding and cross-cultural bridging.55  The first part of this dissertation includes the presentation and description of the context of the three cases. It includes chapters 3, 4, and 5. The second part discusses the cases together focusing on the reasons for rejecting or dismissing the plaintiffs? claims, and the principles behind the decisions in the cases; it includes chapters 6, 7, and 8. The following paragraphs introduce the first part of the dissertation.   Distinctive societies have been living in the territories of the now known states of Canada, Japan, and Mexico since long before such states were established. These distinctive societies vary immensely in population, values, rules, legal perspectives, and understandings of their realities, but the communities that have survived until now are generally grouped under the label of ?Indigenous.?56 Culture and identity change every day. The identity, culture, social conditions, and cosmology of the Gitksan, Wet?suwet?en, Ainu, and Pur?pecha people change while state policies and laws are established, change, and are abrogated. The reader must bear in mind that the legal and state policies had and continue to have enormous consequences for the ways these Indigenous communities change as a culture, as a community, and as a legal entity, but that such laws and policies of the dominant cultures are not the only defining feature of their Indigenous identities. Laws and policies are only one of the many overlapping realities affecting Indigenous peoples. Indigenous peoples and their communities themselves are the key holders of the future of their identity and culture, and this work does not intend to say the contrary.                                                   55 Laara Fitznor, ?The Power of Indigenous Knowledge: Naming and Identity and Colonization in Canada? in Julian Kunnie, Indigenous Peoples' Wisdom And Power: Affirming Our Knowledge Through Narratives (London: Ashgate Publishing, Ltd., 2006), at 53. 56 See the discussion on the definition of this concept in pages 18-19.   33 The land dispossession and relocation of Indigenous peoples might be the most consistent of all colonial policies established by different states, including Canada, Japan, and Mexico.57 Indigenous peoples in Canada, Japan, and Mexico have been relocated repeatedly during the 17th, 18th, and the 16th centuries, respectively. The dispossession of their lands seems, at times, to be lost in history and thus in the law, but has caused much illness, death, and loss. It is without doubt that the losses due to forced relocations cannot be calculated and hardly compensated for by the law. All cases studied in this dissertation are concerned with land dispossession and relocation of the plaintiffs. All the plaintiffs in these cases sought recognition of such land dispossession and relocations, and of their rights over their ancestral territories.   Indigenous communities in the three countries have started revolutions, established confrontational policies with governments, appealed to international organizations, sued the states in international courts such as the Inter-American Court of Justice, and consistently claimed their territories and land as their own. Nevertheless, their struggle is not only about having title over their lands but also reflects important ideological conflicts. These cases exemplify the broad scope of such struggle. The plaintiffs in these cases all hold different interpretations of the relationship between the people, their environment,58 and different lifestyles in relation to the dominant market economy. In Nibutani Dam and Zirahu?n, the plaintiffs did not ask for damages or monetary compensation. The plaintiffs in Delgamuukw originally claimed compensation but this claim was later withdrawn during appeal.59   In Canada, there are a great many Indigenous peoples, among whom are the Gitksan and Wet?suwet?en peoples. The Gitksan and Wet?suwet?en peoples live in the northwest part of what is now known as the province of British Columbia. In Canada,                                                 57 See Seamus Deane in Terry Eagleton, Frederic Jameson and Edward Wadie Said, Nationalism, Colonialism, and Literature (Minneapolis, MN: University of Minnesota Press, 1990), at 10:              Colonialism is a process of radical dispossession.  58 See for example: Denys Delage ?Aboriginal Influence on the Canadians and French at the Time of New France? in Gordon Christie, Aboriginality and Governance, A Multidisciplinary Perspective from Quebec (British Columbia, Canada: Theytus Books, 2006), at 48-68.  59 See Delgamuukw v British Columbia [1993] 5 WWR 97, at para. 258:  Additionally, the parties have asked us not to deal with the question of the right to and amount of compensation, if any.  Accordingly, I leave questions of compensation to future proceedings.   34 around 4 percent of the population is considered ?Indigenous.? The label ?Indigenous? in Canada includes three categories: ?First Nations? such as the Gitksan and Wet?suwet?en; the ?Inuit? (less than 5 percent of the Indigenous population), who are people living in the far north; and the ?M?tis? (30 percent of the Indigenous population), who are people of mixed origins (M?tis means half) with a distinctive culture.60 The term ?First Nations? replaces in some instances the term ?Indian,? which is the term used in the Constitution Act, 1867 section 91 (24) and the Indian Act.  First Nations is a label that intends to recognize the communities that have, since time immemorial, inhabited the territories that now comprise the country of Canada.61 It is considered that there are more than 614 recognized First Nations communities in Canada.62  The Canadian state is an ex-colony established using the legal principles that ruled and still rule England and France.63 Canada is a constitutional monarchy, and the head of state is Queen Elizabeth II of England. It is a parliamentary democracy organized in a federation made up of ten provinces and three territories. The province of British Columbia is a common law jurisdiction while Canada is a jurisdiction where common law and civil law interact continuously.64 Canada has two recognized official languages: English and French. The name ?Canada? was inherited from the                                                 60 Indigenous Peoples' Right to Adequate Housing: A Global Overview. Issue 7 of Report (United Nations Housing Rights Programme), United Nations Human Settlements Programme, United Nations. (Nairobi: UN-HABITAT, 2005) at 79. Online: <http://books.google.ca/books?id=atFtIRj-cdAC&lpg=PA79&ots=QvpMunBUv6&dq=614%20indigenous%20nations%20canada&pg=PA79#v=onepage&q=614%20indigenous%20nations%20canada&f=false>.  61 Administrative agencies, academics, and social institutions might also use the categories of Status Indians and Non-Status Indians. Status Indians are Indians as recognized by the Indian Act, the main law governing Indigenous issues in Canada. Non-Status Indians is an inclusive label used in some circles. Previously, it was understood that only Status Indians were entitled to a wide range of programs and services offered by federal agencies and provincial governments. See the Aboriginal Affairs and Northern Development Canada website. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100014433/1100100014437>.  Today according to Daniels v Canada, 2013 FC 6, Non-Status Indians and M?tis are also Indians.   According to Patricia D. Mills, ?Reconciliation: Git?xsan property and crown sovereignty? PhD Thesis, UBC Faculty of Law (Vancouver: University of British Columbia, 2005): For the most part, over the last two hundred years of either indirect or direct contact, Gitksan people have accepted the presence of Lixs giigyet (newcomers). 62 The Aboriginal Affairs and Northern Development Canada. Online: <http://www.aadnc-aandc.gc.ca/eng/1303134042666/1303134337338>. 63 Peter Hogg, Constitutional Law of Canada (Scarborough, Ontario: Thomson Canada, Student Edition, 2008), at 33-53.  64 In Quebec, civil law predominates.  35 Huron-Iroquois people that used to live in what now is Quebec City and means ?village? or ?settlement,? and it first referred to that area.65    Ainu people have lived in what is known as Russia and Japan since time immemorial.  Ainu people lived in the northernmost part of the island of Honshu, the island of Hokkaido, and the smaller islands to the north of Hokkaido, the Kuriles and Sakhalin. At present, it is considered that less than 0.04 percent of the Japanese population is Ainu, the only group marginally recognized as ?Indigenous? by the state.66  The Japanese state was granted a constitution heavily influenced by the United States of America (US) after the Second World War and most of their legal system is an adaptation of the German, US, French, and English legal systems. Japan is a civil law jurisdiction. It is a constitutional monarchy and has a parliamentary government. It is a unitary state divided into forty-seven prefectures and the official language is Japanese. The original name in Japanese is Nihon, or Nippon, which means ?where the sun rises.?     Mexico was a territory populated by several Indigenous nations and societies before the Spanish arrived in the 16th century. The Pur?pecha were an independent people that inhabited a large part of what today is known as the state of Michoac?n in the southwest part of Mexico.67 Their cazontzi (king) surrendered certain rights to the Crown of Castille in the 1520s, which implied submission to the Crown but not                                                 65 ?Canadian Heritage? on the Government of Canada website. Online: <http://www.pch.gc.ca/pgm/ceem-cced/symbl/101/101-eng.cfm>. 66 There is no conclusive information regarding the Ainu population, most sources such as museums and NGOs consider that the number is between 30,000 and 50,000 people. The percentage and information provided here were obtained from the site of the Council for Ainu Policy Promotion of the Government of Japan. Online: <http://www.kantei.go.jp/jp/singi/ainusuishin/index_e.html#about>. No laws recognize the Ainu as ?Indigenous.? The court in the case of Nibutani Dam and an isolated resolution of the Upper House of the Parliament have recognized the Ainu as ?Indigenous.? See the Parliamentary Upper House Resolution of June 6, 2008 (No. 169th Diet Session), available on the Diet?s Upper House website. [Originally in Japanese, see bibliography for title in original language.] Online: <http://www.sangiin.go.jp/japanese/gianjoho/ketsugi/169/080606-2.pdf >. 67 Ignacio Bernal, et al. Mexican General History (M?xico, D.F.: El Colegio de M?xico, 2000), at 280, and Felipe Castro Gutierrez, The Tarascos and the Spanish Empire: 1600?1740 (Mexico, DF: Universidad Nacional Autonoma de Mexico, 2004)  [Originally in Spanish, see bibliography for title in original language.]   36 conquest.68 Nu?o de Guzm?n finally annexed Michoac?n in the 1530s after the assassination of the Cazontzi Tzintzicha, the last king of the Pur?pecha.69 Most of Mexico's population is a mix of cultures and heritages from different parts of the world, mainly Spain, the Indigenous nations living in the territory, and African peoples, who traveled to Mexico during the colonial era. Mexico?s Indigenous population is numerically the largest in Latin America, estimated by the 2000 National Council of Population (CONAPO) Survey at 12.7 million, which is around 15 percent of the Mexican population.70 The census, based on the parameter of language, considers that a little less than 8 percent of the population is Indigenous.71 There are sixty-two Indigenous nations in Mexico.72   The Mexican state is an ex-colony of Spain, created under the idea of the law inherited from Continental Europe.73 It is a federal republic made up thirty-one states (provinces) and one federal district. Mexico is a civil law jurisdiction. The only official language recognized in Mexico is Spanish, but numerous Indigenous languages are taught in public schools. The official name is United States of Mexico, but in this dissertation only the name ?Mexico? will be used. The word ?Mexico? refers to the area of Mexico-Tenochtitlan and it is a N?huatl sacred word.                                                   68 Ignacio Bernal, et al. Mexican General History (M?xico, D.F.: El Colegio de M?xico, 2000), at 281.  69 Ibid. 70 The Commission for the Development of Indigenous Peoples in Mexico considers that 9.5 percent of the population is Indigenous according to its own report to the United Nations published in 2010 within the United Nations Program Developments Program. On its website, it mentions that there are around 15 million Indigenous persons in Mexico. The International Labour Organization, Indigenous & Tribal Peoples? rights in practice, A guide to ILO Convention No. 169, International Labour Standards Department (2009),at 12 cites a 2000 National Council of Population (CONAPO) Survey that considered the Indigenous population in Mexico was 12.7 million and made up of sixty-two groups. Online: <http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_113014.pdf>.   71 Most reports on Indigenous peoples in Mexico to the UN system records from 11 to 15 million people, which is around 13 percent of the total population. The number in the National Census of 2010, which is based in the language criteria, is of more than 6.5 million, accessible online at <http://cuentame.inegi.org.mx/poblacion/lindigena.aspx>.  72 Commission for the Development of Indigenous Peoples. Online: <http://www.cdi.gob.mx/index.php?option=com_content&view=article&id=1387&Itemid=24>.  73 The Mexican legal system is based on the Napoleonic Code and it inherited paradigms and legislation from Spain after its independence from the Spanish Empire. Jorge A. Vargas, ?An Introductory Lesson to Mexican Law: From Constitutions and Codes to Legal Culture and NAFTA,? (2004) 41 San Diego L Rev 1337, at 1342-1355.    37 Chapter  3: The Delgamuukw Case Our Sovereignty is our Culture? We have waited one hundred years. We have been patient. 74  The case of Delgamuukw was chosen for study among the many cases that have arisen from the many Indigenous nations in Canada because it is a particularly detailed claim to title and jurisdiction that has been studied carefully by the courts. The Delgamuukw case is remarkable in that the SCC made a significant effort to define and limit the concept of Aboriginal title and how it was to be proven. The decision in Delgamuukw is one of the defining decisions regarding Aboriginal rights and title in Canada. In this case, the nations? claims were broad and included many issues that had not been discussed as extensively in other cases. Such claims are at the core of Indigenous peoples? litigation in the country. There were and are numerous anthropological, legal, historical, and social sources of information regarding this case. Delgamuukw is a wide-ranging case that has allowed me to identify many substantive and procedural legal issues regarding cases of Indigenous peoples for this study.   The Delgamuukw case began with a statement of claim presented in the British Columbia Supreme Court (BCSC) in Smithers, British Columbia (BC) on October 24, 1984. Thirty-five Gitksan chiefs and thirteen Wet?suwet?en chiefs, as representatives of their communities (houses), presented the claims, 75  with the trial actually beginning on May 11, 1987.76                                                   74 Gitksan-Carrier Declaration, Kispiox, BC, November 7, 1977. Online: <http://www.upperskeena.ca/vmc/multimedia/sec1/1%20Fundamentals%20of%20Gitxsan%20governance/2%20feasting/mm/2%20declaration.pdf>. 75 The statement of claim can be found in the Smithers Registry under number No. 00843/1984. 76 After the presentation of the land claim in the BCSC in 1984, it took 3 years to define the scope of the claim. The precise nature and scope of the claim in common law jurisdictions are settled before trial differently from claims in many civil law jurisdictions. The issues in conflict in a common law trial are decided in a preliminary process that involves both parties and the court. This way of defining the scope of the claim and the discovery process is only seen in the Canadian case in this study.  38 The original claim that the chiefs made was for a declaration that the forty-eight chiefs had ?ownership? and ?jurisdiction? over 133 separate territories covering 58,000 square kilometers in the Skeena and Bulkley River watersheds in Northwestern BC. The plaintiffs also claimed unspecified Aboriginal rights to use the land, such as fishing and hunting rights, and compensation for lost lands and resources. Conversely, the defendant, the BC provincial government, argued that the plaintiffs had no right or interest in the land, and that their claim for compensation ought to be against the federal government.77   The last day of the trial was held on June 30, 1990.78 In his decision, the trial judge dismissed the plaintiff?s claims, considering much of their evidence as of low legal value, and in any event ruled that the BC provincial government extinguished Aboriginal title in the province before 1871.79    The Gitksan and Wet?suwet?en chiefs appealed the trial court decision. During the appeal before the British Columbia Court of Appeal (BCCA), their claim was modified to a claim for ?Aboriginal title? and ?self-government,? and the individual claims by each house were amalgamated into two communal claims, one advanced on behalf of each nation. On June 25, 1993, a majority in the BCCA dismissed part of the appeal but still overturned significant aspects of the trial court decision. The court held that the plaintiff?s Aboriginal title had not been extinguished in BC, but did not grant them Aboriginal title, ownership, self-government, or jurisdiction. The court also recommended that there be negotiations between BC and the Gitksan and Wet?suwet?en.                                                  77 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC) 78 The Delgamuukw case is among the longest trials ever in British Columbia (374 days). 79 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC). The plaintiffs later withdrew their claims for damages.   39 The plaintiffs appealed again and the Province cross-appealed and in June 1994 the Supreme Court of Canada (SCC) granted leave.80 Shortly thereafter, the judicial process was adjourned for approximately two years due to an effort by the parties to negotiate a solution to the dispute, as recommended by the BCCA. The negotiations were not successful and both parties left the negotiation table in 1996, returning to the judicial process at the SCC.81    In June 1997, the SCC heard the arguments by the parties and on December of the same year, the court allowed the appeal by the plaintiffs in part requiring a new trial and dismissing the cross-appeal.82   The land claim of the Gitksan and the Wet?suwet?en peoples studied in this dissertation rests on the historical context explained below.  3.1.1 Context of the Delgamuukw case According to the Constitution Act, 1867 (formerly known as the British North America Act, 1867), jurisdiction over Crown-owned lands and resources was given to the provincial governments, while the national government assumed responsibility for Indians and the lands reserved for Indians.83 The main law regulating Indians is known as the Indian Act, a federal law first enacted in 1876.84                                                  80 ?Leave to appeal? refers to the permission the SCC must grant before it hears the case.  Granting leave to appeal is a discretionary process. The SCC grants it if, in the opinion of a panel of three SCC judges, the case involves a question of public importance or if it raises an important issue of law (or a combination of law and fact) that warrants consideration by the SCC. See the ?Role of the Court? on the Supreme Court of Canada website. Online: <http://www.scc-csc.gc.ca/AboutCourt/role/index_e.asp>. Japan has a slightly similar notion related to non-constitutional matters that are appealed to the Supreme Court. In Mexico, there is no similar legal concept.  81 Ministry of Aboriginal Affairs, News Release, "Province Suspends Treaty Negotiations with Gitxsan [sic]," 1 February 1996, according to the document prepared by Mary C. Hurley ?Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v British Columbia,? available on the Parliament of Canada Information and Research Service website. Online: <http://www.parl.gc.ca/content/lop/researchpublications/bp459-e.htm>.  82 Delgamuukw v British Columbia, [1997] 3 SCR 1010, at paras. 184, 188, 208.  83 The Constitution Act, 1867, 30 & 31 Vict, c 3, in VI. Distribution of legislative powers, Powers of the parliament:  91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative  40  Aboriginal Affairs and Northern Development Canada is the department of the federal government that negotiates and implements land claims and self-government agreements on behalf of the Government of Canada. According to its website, the department is responsible ?for meeting the Government of Canada's obligations and commitments to First Nations, Inuit and M?tis and for fulfilling the federal government's constitutional responsibilities in the North.?85   3.1.1.1 Indigenous peoples ?Indians? are registered and are identifiable through a certificate given by the federal government. The Indian Act regulates the registration of ?Indians.? There are, and have always been, complex rules governing Indian status, which are detailed in Section 6 of the Indian Act. According to the Indian Act, 1876, an ?Indian? was: ?any male person of Indian blood reputed to belong to a particular band; any child of such person; any woman who was lawfully married to such person.? Section 6 no longer mentions the word ?blood? but it establishes rules that go back to the first regulations of Indian status in Canada. The Indian Act has been amended several times due mainly to arguments of discrimination.86   Being Indian was originally dependent on male lineage. This was marginally reformed through Bill C-31 in 1985, but the reform has not stopped the descendants                                                                                                                                       Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,... 24. Indians, and Lands reserved for the Indians... 84 The current act is the Indian Act RSC, 1985, c. I-5. Due to the unitary legal system of Japan, the regulation of Ainu issues happens similarly through national organizations, nevertheless, since most of the Ainu population is in the province of Hokkaido, all the programs are run in this state with a large control of the province. This is different in Mexico, where the federal, state and municipal governments share the responsibility of regulating Indigenous issues and communal land. 85 See the Aboriginal Affairs and Northern Development Canada website. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100010023/1100100010027>.  86 The Indian Act now establishes as Indian: a person who was registered or entitled to be registered immediately prior to April 17, 1985; and/or a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; among other more complex rules that relate to people that had lost their status (or their parents had lost their status) due to reasons now considered discriminatory. For more information read on Indian women regulations in Canada see Alan Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State. (Toronto: UBC Press, 2000) and Joyce Green, ?Canaries in the Mines of Citizenship: Indian Women in Canada? (2001) 34 Canadian Journal of Political Science / Revue canadienne de science politique: Citizenship and National Identity / Citoyennete et identite nationale, 4, 715.   41 of women married to non-Indians from losing their Indian status.87 Prior to Bill C-31 and previous reforms to the Indian Act, there were also many other ways in which Indians could lose their status, among them ?enfranchisement,? service in the armed forces and marriage. 88  In the past, non-status Indians were not provided with compensation or support, nor were they guaranteed access to their communities of origin since band membership would have been removed. Essentially, an Indian would lose some of his/her Indian rights upon losing his/her status, such as the right to live on his/her community?s reserve.89 Once someone had lost their status, or was enfranchised, they were unable to pass along Indian status to their children.90 These regulations were notoriously designed into assimilate Indians to mainstream Canadian society.91 Today it is more difficult to lose Indian status. In addition, there are recent judicial decisions that establish that M?tis and non-status Indians are ?Indians? within the meaning of the Constitution Act, 1867, s. 91(24).92    In 1969, the federal government proposed to abolish Indian status. The proposal is contained in a document known as The White Paper 1969.93 Aboriginal leaders and                                                 87 John Borrows and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials and Commentary, 3rd Edition (Canada: LexisNexis, 2007), at 637. See also McIvor v Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153, and Minister of Indian and Northern Development of Canada, Re-assessing the Population Impacts of Bill C-31 (Ottawa: Minister of Public Works and Government Services Canada, 2004). Online: <http://publications.gc.ca/pub?id=267840&sl=0>.  88 E.g., there was a time where any Indian who obtained a university degree and/or became a professional such as a doctor or lawyer would automatically lose their status. The same process could occur for any Indian who served in the armed forces, or any status Indian woman who married a non-status Indian man. There were also many cases where authorities ?deleted? Indians? names from the registry because of probable white ancestors in their bloodline. There are many cases as the one of Lesser Slave Lake in Alberta in the 1940s and the enfranchisement of Treaty Indians in the Edmonton Agency in 1885 and 1886, when almost 43 percent of them lost status through the establishment of a policy that granted scripts to ?half-breeds? as then was the legal label used for M?tis. See Douglas Sanders, ?Aboriginal and Indian Rights in Law and Justice in a New Land? in Louis A. Knafla (ed.) Law & Justice in a New Land: Essays in Western Canadian Legal History (Toronto: Carswell, 1986), at 110.  89 Joyce Green, supra note 86.  90 John Borrows and Leonard I. Rotman, supra note 87, at 598. 91 E. Brian Titley. A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada. (Vancouver: UBC Press, 1986), at 34:  In 1914, the Deputy Superintendent General of Indian Affairs Duncan Campbell Scott wrote: The happiest future for the Indian race is absorption into the general population, and this is the object of the policy of our government. The great forces of intermarriage and education will finally overcome the lingering traces of native custom and tradition. 92 Daniels v Canada, 2013 FC 6.  93 Royal Commission on Aboriginal Peoples, ?The White Paper 1969,? in The Report of the Royal Commission on Aboriginal peoples, vol. 1, part 1: The Relationship in Historical Perspective, Stage Four: Negotiation and Renewal. (Ottawa: The Commission, 1996).   42 organizations resisted the proposal. Those opposed to it claimed that Indian status acknowledged the distinctive history of Aboriginal peoples in Canada and that this legal recognition forced the Canadian government to legally acknowledge its obligations to Aboriginal peoples. The concern was that to abolish status would absolve the government of its commitments and assimilate Aboriginal peoples into mainstream Canadian society faster.94  3.1.1.2 Aboriginal title in Canada and British Columbia Ownership of land under Canadian law has its origins in the common law. Such ownership reflects an interest in the land and all interests are tenurial to those of the Crown.95  Aboriginal title is also considered a burden to the Crown?s title:  The theory of common law was that the Crown mysteriously acquired the underlying title to all land in Canada, including land that was occupied by Aboriginal people. But the common law recognized that Aboriginal title, if not surrendered or lawfully extinguished, survived as a burden on the Crown?s title.96  The first constitutional principle in the Constitution Act, 1867 established that the constitution of Canada is similar in principle to the constitution of the United Kingdom, which established the concept of the Crown. The Crown refers to the sovereign; meaning to say that Canada is a country governed by democratic institutions that carry out their duties under the authority of the Crown.97 Canada, unlike the United Kingdom, is a federation. For this reason, the expression of the principle of the Crown is different: the Crown acts separately as in right of each of the provinces and the federal government, while the British Crown serves Canada as a ceremonial Crown.98                                                   94 Ibid. 95 Donald M. Smith, ?Title to Indian reserves in British Columbia: a critical analysis of order in council 1036? LLM Thesis, UBC Faculty of Law (Vancouver: University of British Columbia, 1988). 96  Peter Hogg, Constitutional Law of Canada (Scarborough, Ontario: Thomson Canada, Student Edition, 2008), at 637.  97 Parliament of Canada website. Online: <http://www.parl.gc.ca/About/Senate/jubilee/crown-e.htm>. 98 Her Majesty in Right of the Province of Alberta v Canadian Transport Commission, [1978] 1 SCR  61, at 10-11; 1977 2 Alta LR (2nd) 72, at 79-80 (subnom. In re Pacific Western Airlines Ltd.).  43 The legal concept of the Crown is originally indivisible.99 However, when the land is transferred from one order of government to another, it leaves virtually no interest in the land in the former ?administrator? or Crown.100 When the division of the resources was made in Canada in 1867 (BC entered the agreement in 1871), title remained in the indivisible Crown but the control, benefit, use, and administration of resources were distributed. The government that has the beneficial use of the land is the only government that can ?dispose? of title to the land.101   The provinces controlled and administered the lands and used the revenues as public property. The property of the federal government in BC was acquired from the province. It is not clear when BC acquired control of all hereditary revenues by Imperial statute but it happened before it entered Confederation in 1871.102   Treaties and the development of the concept of Aboriginal title Under Canadian and BC laws, the Gitksan and Wet?suwet?en peoples have certain Indigenous rights in the reservations and Indigenous villages. For example, the Indian Act establishes that ?the Ministry of Indian Affairs and Northern development can use reserve lands for certain purposes (schools and health centers) only with the consent of the band council; taxation is limited on real and personal property on reserve lands; reserve land is considered to be exclusively for Indians.? 103 This is the same for all recognized First Nations in Canada. Apart from these rights, First Nations can acquire or achieve recognition of other rights through treaties and through the courts.                                                  99 R. v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta, [1982] QB 892 (CA), at 909, 916-917.  In this decision the court traced the transformation of the doctrine of the indivisibility of the Crown to the modern doctrine of divisibility. Lord Denning wrote:  ?the obligations to which the Crown bound itself in the Royal Proclamation of 1763 are now to be confined to the territories to which they related and binding on the Crowns only in respect of those territories? 100 Also refered as ?the instantiation of the Crown.? 101 Ontario Mining Co. v Seybold, 1903 AC 73 and Reference Re Saskatchewan Natural Resources, [1931] SCR 263 as explained in Smith, supra note 95.  102 Gerard V. La Forest, Natural Resources and Public Property under the Canadian Constitution (Toronto: University of Toronto Press, 1969), at 31. 103 Royal Commission on Aboriginal Peoples, The Report of the Royal Commission on Aboriginal peoples, Vol. 1, Part 1: False Assumptions and a Failed Relationship, Chapter 9: The Indian Act, 8. The Indian Act and Indians: Children of the State (Ottawa: The Commission, 1996). Online at: <http://www.collectionscanada.gc.ca/webarchives/20071211051055/http://www.ainc-inac.gc.ca/ch/rcap/sg/sg24_e.html#81>.   44  Since the arrival of Europeans to Canada, treaties have been signed between Indigenous peoples and Europeans. Some of the older treaties were signed with the intention of having Indigenous peoples as allies due to the wars between the English, the French, and then later with the US in the 18th century. Other treaties surrendered Indian land in exchange for other lands, goods, and the consideration that Aboriginal peoples would continue to rule their peoples and territories according to their own laws. These treaties used concepts such as ?cession? and ?surrender? of land,104 assimilating Indian title to ownership. Many of these treaties are an example of how Indigenous? self-government and jurisdiction were acknowledged at the end of the 18th century and also reflect the many ways in which they have not been respected. Treaties are still being negotiated in Canada and are central to the understanding of the laws regulating the relationships between the state and the Indigenous communities. Even though the concept of Aboriginal title is most usually understood within the framework of treaty-making, it is a concept (still being) developed by common law and the courts.   3.1.1.3 Judicial decision-making on the matter of Aboriginal title and rights in BC In the last part of the 19th century, the SCC, influenced by decisions in the US,105 adopted the concept of ?Indian title? in the case of St. Catharines Milling and Lumber Company v The Queen.106 Even though this case was not about an Indian claim over land but a conflict between the provincial and the federal government regarding their                                                 104 E.g. Ratified Treaty # 7: Treaty of Fort Stanwix, or The Grant from the Six Nations to the King and Agreement of Boundary ? Six Nations, Shawnee, Delaware, Mingoes of Ohio, 1768 (US). Online: <http://earlytreaties.unl.edu/treaty.00007.html>.  105 In the 19th century, there were several decisions rendered by the Supreme Court of the United States in which the concept of ?title? was first used to refer to the right of Indigenous peoples? over their land. See for example US Supreme Court, Johnson & Graham's Lessee v McIntosh 21 US 543 (1823), Cherokee Nation v Georgia 30 US 1 (1831) and, Worcester v Georgia 31 US 515 (1832).  106 St. Catharines Milling and Lumber Company v The Queen [1887] 13 SCR 577.  Online: <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/3769/index.do>. The Governments of Ontario and Canada, when arguing the case, borrowed the concepts of ?Indian title? and ?Indian interest? used in the US. See the argument of Mr. Blake, Counsel for Ontario in the case before the Privy Council, Open Library website. Online: <http://archive.org/stream/cihm_00164#page/n1/mode/2up>.  45 jurisdiction over land in Ontario, the decision had a large influence on the legal landscape of Indigenous peoples? rights over land in Canada.   In the same case on appeal, the Privy Council (UK) decided that the Royal Proclamation of 1763 was the legal source of Indian title in Canada.107 The Privy Council also decided that ?Indian title? was the source of the personal and usufructuary Indigenous rights to the land, which were dependent upon the good will of the sovereign.108  The Royal Proclamation of 1763 declared that the interests of the natives in their lands could not be disturbed, and demanded that they be respected. It did not use the concept of ?Indian title? but the concept of ?posession? of land. According to the principles of the Royal Proclamation of 1763, before the Crown could open any land for purchase and settlement, the interests of the Indigenous peoples had to be formally ?purchased,? or ?surrendered.? The proclamation prescribed that Indian land could only be purchased by the Crown. This view is still recognized by the common law, supporting the notion that Aboriginal title is a compensable right,109 equivalent, in a certain degree, to the right to ?own.? The policy of the requirement of surrender or purchase of the Aboriginal title evolved during the years, mostly for the worst as it is reflected in some versions of the Indian Act, which even permitted the taking of reserve lands for public purposes without surrender.110                                                   107 St. Catharines Milling and Lumber Company v The Queen [1888] UKPC 70, 14 App Cas 46.  108 Ibid., Lord Watson, at p. 54, 58. The Royal Proclamation of 1763 provides: ...And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure... And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained. 109 Brian Slattery, ?Understanding Aboriginal Rights? (1987) 66 Canadian Bar Review 727, at 751. 110 Indian Act RSC. 1970, C. I-6 as seen in Smith, supra note 95, at 37.  46 It has been disputed whether the Royal Proclamation of 1763 is applicable in BC. In 1973, the SCC in Calder et al. v Attorney-General of British Columbia (Calder) divided on the issue, with three votes against and three votes in favor. In Delgamuukw, the trial judge and the BCCA held it did not apply, while the SCC did not address the issue of whether it was applicable in BC or not.  Courts did not hear Aboriginal title and rights cases in Canada for many years mainly due to a provision of the Indian Act that prohibited raising funds for Aboriginal land claims.111  In 1965, the Supreme Court ruled in R. v White and Bob (White and Bob) upholding Aboriginal treaty hunting rights in BC in a criminal law case.112 In 1973, in Calder, four judges of the SCC recognized that the Nisga?a peoples? Aboriginal title had survived until modern times.113 The decision marked a tremendous change in the legal and also political landscape of Indigenous claims in BC.114 The decision did not grant title to the plaintiffs but recognized that ?Once aboriginal title is established, it is presumed to continue until the contrary is proven. When the Nishga people came under British sovereignty they were entitled to assert, as a legal right, their Indian title. It being a legal right, it could not thereafter be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation. There was no surrender by the Nishgas and neither the Colony of British Columbia nor the Province, after Confederation, enacted legislation specifically purporting to extinguish the Indian title nor did the Parliament of Canada.?115  After the Calder decision, the federal government entered a negotiation process with the Nisga?a, and established the first system to deal with comprehensive claims.116                                                 111 Indian Act, RSC. 1927, c. 98, section 141. The clause was repealed in 1951.  112 R. v White and Bob [1964], 50 DLRDLR (2d) 613 (BCCA), aff'd (1965), 52 DLR (2d) 481 (SCC). 113 Calder et al. v Attorney-General of British Columbia, [1973] SCR 313.  114 Department of Indian Affairs and Northern Development, ?Statement Made by the Honourable Jean Chr?tien, Minister of Indian Affairs and Northern Development on Claims of Indian and Inuit People,? Communiqu?, 8 August 1973. Online: <http://www.specific-claims-law.com/images/stories/specific_claims_docs/05-Fed_Govt_Docs_INAC_etc/INAC_(IAND)_AINC/StatementChretienClaimsIndianInuitPeople.pdf>.  115 Calder et al. v Attorney-General of British Columbia, [1973] SCR 313, at 316.   116 Aboriginal communities are the only legal entities that can file ?land claims?. ?Land claims? are about not only land but also about other Aboriginal rights and there are two kinds: Comprehensive and Specific. Most ?land claims? are negotiated through treaty negotiations with state and federal authorities. ?Comprehensive land claims?  47 This policy was revised in 1981 and a new plan titled ?In all fairness: A Native Claims Policy?117 was launched. Such policy was designed to obtain consensual extinguishments of Aboriginal title and seemed to favour the recognition of inherent Aboriginal rights.118   By the 1980s the courts still had not explained what Aboriginal rights and title comprehended. In 1980, Mr. Justice Mahoney wrote: ?Canadian courts have, to date, successfully avoided the necessity of defining just what an Aboriginal title is? in Baker Lake v. Minister of Indian Affairs and Northern Development (Baker Lake). 119 In 1984, the SCC established that the Indian interest in reserve land was similar to Aboriginal title in traditional tribal lands in the decision Guerin v The Queen (Guerin).120 In this decision, the court also established that the interest was of a unique nature, which is at least a right of occupation and possession similar to beneficial ownership. The judges were clear in establishing that the loss of their interest implied compensation.121 Moreover, the court established that the Crown is under the obligation to deal with the land on the Indian?s behalf. According to this decision, the government had a fiduciary duty to First Nations, a trust-like relationship.   In 1990, in R. v Sparrow (Sparrow) the SCC established that the courts must be careful ?... to avoid the application of traditional common law concepts of property as they develop their understanding of ... the ?sui generis? nature of Aboriginal                                                                                                                                       are claims over land and rights that have never been negotiated. ?Specific land claims? are claims over land and rights that have been addressed through treaties in the past. The presentation of a specific land claim entails an allegation that the treaty has been violated.   117 Aboriginal Affairs and Northern Development Canada website. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100014174/1100100014179>. 118 Louis A. Knafla (ed.), Law & Justice in a New Land: Essays in Western Canadian Legal History, (Toronto: Carswell, 1986), at 25. The BC government joined the negotiations with the Nisga?a in 1990.  119 Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development, [1980] 1 FC 518 (TD). The paragraph continues in this manner:  It is, however, clear that the Aboriginal title that arises from the Proclamation is not a proprietary right. If the Aboriginal title that arose in Rupert?s Land independent of the Royal Proclamation were a proprietary right, then it would necessarily have been extinguished by the Royal Charter of May 2, 1670, which granted the Hudson?s Bay Company ownership of the entire colony.? 120 Guerin v The Queen [1984] 2 SCR 335; 55 NR 161, at 171-174. 121 Donald Smith, supra note 95.  48 rights,?122 implying that Aboriginal rights were particular and different from any other property law concept in common law, and that recognizing such difference was important in the aim of protecting the culture and nomos123 of Indigenous peoples.   The courts continue to define the meaning of Aboriginal rights and title and in explain how can those rights be proven. The process is slow mainly due to two reasons. The first is that the definition of Aboriginal title has to be established on a case-by-case basis. And, the second is that according to Canadian Aboriginal policy, the treaty process is critical to resolving uncertainty around Aboriginal rights.124  This peculiarity of the definition of Aboriginal title is of the utmost importance of the study of the Delgamuukw case since it reflects the lack of expectation of a legislative effort in the area. The expectation is that the different nations will negotiate a treaty that will define, on a case-by-case basis, the nature of their Aboriginal title.   In my opinion, and in the opinion of many, including the courts, there is little legal certainty of what Aboriginal title is and how to prove it.125 Until Delgamuukw, the courts were never clear as to how Indigenous peoples could prove their claimed legal interests in the land and the continuing and exclusive occupation prior to the arrival of the Europeans. At the time of the Delgamuukw case, the lawyers thought of Aboriginal title as a communal right to the land itself that stems from a pre-contact exclusive occupation that has continued until today.126                                                   122 R. v Sparrow, [1990] 1 SCR 1075, at para. 1112. 123 Liddell & Scott, Greek-English Lexicon (Oxford: Clarendon Press, 2001), at 535: ?Where custom becomes law.?  It refers to anything assigned, a usage, custom, law, ordinance. I use the concept of nomos to express the system of rules that are agreed upon by a society to rule themselves. I use it similarly to how Robert Cover understands it: nomos is the normative universe, in Robert M. Cover ?Foreword: Nomos and Narrative? (1983) 97 Harv L Rev 4, at 4.   124 Department of Aboriginal Affairs and Northern Development website. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100016383>. 125 Delgamuukw v British Columbia, [1997] 3 SCR 1010, at para. 75:  Moreover, in my opinion, that ruling was correct because it was made against the background of considerable legal uncertainty surrounding the nature and content of Aboriginal rights, under both the common law and s. 35(1). [emphasis added] 126 Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development, [1980] 1 FC 518 (TD)  49 Many of the landmark cases defining Aboriginal title in Canada have been brought to the courts in BC because BC has signed very few treaties with Indigenous peoples and because until recently the BC government had the policy of disregarding requests to negotiate with Aboriginal nations.   In 1976 the Canadian government adopted the first ?comprehensive land claims policy? which allowed only six land claims to be negotiated (only one per province) at any one time.127 In the beginning of the 1980s, the BC government was negotiating with the Nisga?a, and rejected the requests to negotiate with the Gitksan and Wet?suwet?en. The federal and BC governments changed the policy in the 1990s.   Most of the people whom I interviewed during my research for this dissertation agreed that Indigenous peoples prefer to negotiate with the government versus filing lawsuits to the courts.128 The plaintiffs in the Delgamuukw case however had no recourse available for settling the issue of their territory other than through the court process.129   Constitutional regulation of Aboriginal title There was no constitutional entrenchment of Aboriginal rights until the establishment of the Constitution Act of 1982, which establishes:   35. (1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, ?Aboriginal peoples of Canada? includes the Indian, Inuit and M?tis peoples of Canada.                                                 127 See the Parliament of Canada Information and Research Center website. Online: <http://www.parl.gc.ca/Content/LOP/ResearchPublications/prb992-e.htm>, which cites the Minister of Indian Affairs and Northern Development, Comprehensive Land Claims Policy, Minister of Supply and Services, Ottawa, 1987.  While the new policy allowed Aboriginal parties to retain some rights to land, it did not resolve Aboriginal concerns about loss of other rights under the federal requirement that Aboriginal title to lands and resources be surrendered in exchange for defined rights set out in a land claim settlement. 128 Eva Casta?eda Cort?s, QC, Co-counsel for the Appellants: Zirahu?n Community, interview with author, 13 July 2011, and Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011.  129 Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011.    50 (3) For greater certainty, in subsection (1) ?treaty rights? includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.  Any infringement of an Aboriginal right must be enacted by the competent legislative body (federal parliament) and must satisfy a test of justification.130 Section 35 is not included in the Charter of Rights and Freedoms, which means that Aboriginal rights are not ?Charter rights.? Section 35 is exempt from the ?notwithstanding clause? that applies to a number of the rights in the Charter. In other words, the federal government cannot override Aboriginal rights on the same basis as some Charter rights. Aboriginal rights can be limited, but under different rules such as ?compelling and substantive objectives related to development.?131   Most of the original drafts of the Constitution Act of 1982 did not include any provision that protected Aboriginal rights. When the drafts were being prepared, several Aboriginal associations, networks, and governments campaigned to obtain the entrenchment of Aboriginal rights in the Constitution and worried that with the patriation of the constitution from Britain their recognized rights under the previous constitutional scheme would be ignored.132 During the campaign many Aboriginal leaders addressed the British Parliament and different forums of the UN soliciting                                                 130  Peter Hogg, Constitutional Law of Canada, supra note 96, at 641. The test sets the criteria that determine whether an Aboriginal right was infringed upon, and whether the infringement was justified. According to this test, an Aboriginal right is infringed upon if the infringement imposes undue hardship on the First Nation; is unreasonable; and prevents the nations from exercising their right according to their preferred means. An infringement to an Aboriginal right might be justified if: the infringement serves a ?valid legislative objective,? such as the conservation of natural resources; the infringement has been as minimal as possible in order to effect the desired result; fair compensation was provided for in the case of expropriation; and, the Aboriginal nation holder of the right was consulted or at the least informed. In summary, the Sparrow doctrine consists of three main issues: 1) Is there an  or treaty fishing right?; 2) If so, does the regulation or legislation concerned infringe on this right?; and 3) If there is infringement of the right, is the infringement justified? 131 Delgamuukw v British Columbia, [1997] 3 SCR 1010. 132 For more information in this regard consult the Constitution Express movement available on the Union of BC Indian Chiefs? website. Online: <http://constitution.ubcic.bc.ca/>.    51 pressure on the Canadian government in accepting the recognition of their rights.133 Their campaign was ultimately successful in that the Constitution includes the recognition of Aboriginal rights in Canada.   Aboriginal title in British Columbia Kent McNeil argues that the constitutional framework of Aboriginal title has not been practical due to the competing and divided federal and provincial jurisdictions.134 Historically, the Constitution Act, 1867 gave the federal legislature the responsibility for Indians and lands reserved for the Indians (and by implication, the exclusive right to negotiate treaties) but at the same time, transferred the ownership and control of public lands to the provinces. The provinces were the beneficiaries of the surrendered Crown land but there was no automatic process to follow to transfer the land to the Dominion for reserves. It was difficult to fulfill the terms of the treaties while negotiating with the provinces for the land. In the case of British Columbia, there were no treaties negotiated between the federal government and Indigenous nations, except Treaty Eight for lands in the border between today?s British Columbia, Yukon, and Alberta.135   Long before, the colonial governments in BC applied two different policies regarding the Indians before joining Confederation in 1871. During the first years (1850?1854), the colony?s government of Vancouver Island (and before that the Hudson?s Bay Company) negotiated a series of treaties or deeds of conveyance with different Indigenous communities on Vancouver Island. All those agreements had the same format and provided for the retention of ?village sites and enclosed fields and for                                                 133 The Queen v The Secretary of State for Foreign and Commonwealth Affairs, Ex Parte: The Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotian Indians (1981), 2 All ER 118 (UK); 4 CNLR. 86 (rendered January 28, 1982).  134 Kent McNeil, ?Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction? (1998) 61 Sask L Rev 431. 135 N.D. Banks, ?Indian Resource Rights and Constitutional enactments in Western Canada, 1871?1930? in Louis A. Knafla (ed.) Law & Justice in a New Land: Essays in Western Canadian Legal History, supra note 118, at 162.  52 hunting and fishing on unoccupied lands as carried on formerly.?136 The province could not continue this policy due to a lack of funding to pay for the surrender of lands.137  After 1871, the BC provincial government did not recognize Aboriginal title; therefore, they argued, there was no need to negotiate treaties in order to extinguish it.138 Indian reserves in BC were not established pursuant to treaties, as in some other parts of Canada. They were established according to provincial policies and laws. The province adjusted the size of many of the few previously established reserves to ?meet appropriately what was considered to be the actual requirements of the Indians? and established the measure of ten acres per household as the standard size.139 The amounts of land for Indian reserves were the smallest amounts given in Canada (past and future).                                                    136 Wilson Duff, ?The Fort Victoria Treaties? (1969) 3 BC Studies 3, where you can see the text of one of the treaties (Teechamitsa):  Know all men, We the Chiefs and People of the "Teechamitsa" Tribe who have signed our names and made our marks to this Deed on the Twenty ninth day of April, one thousand eight hundred and Fifty do consent to surrender entirely and for ever to James Douglas the Agent of the Hudsons Bay Company in Vancouvers Island that is to say, for the Governor Deputy Governor and Committee of the same the whole of the lands situate and lying between Esquimalt Harbour and Point Albert including the latter, on the straits of Juan de Fuca and extending backward from thence to the range of mountains on the Sanitch Arm about ten miles distant. The Condition of, or understanding of this Sale, is this, that our Village Sites and Enclosed Fields are to be kept for our own use, for the use of our Children, and for those who may follow after us; and the land, shall be properly surveyed hereafter; it is understood however that the land itself, with these small exceptions becomes the Entire property of the White people for ever; it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly. We have received as payment Twenty-seven pound Ten Shillings Sterling. In token whereof we have signed our names and made our marks at Fort Victoria 29 April 1850. Done in the presence of? 137 Donald Smith, supra note 95, at 6. 138 See Aboriginal Affairs and Northern Development Canada website. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100016383>.  139 According to Donald Smith supra note 95, at 8, during the leadership of Joseph Trutch, the Province adjusted the Kamloops-Shuswap and Lower Fraser River reserves.  According to the website of Indigenous Foundations of the University of British Columbia. Online: <http://indigenousfoundations.arts.ubc.ca/?id=8356>, reserve acreage varied across the country. Treaties 1 and 2 (mainly in Manitoba, 1871) allotted 160 acres per family of five, whereas Treaties 3 to 11 (1871?1921) granted 640 acres per family of five. In British Columbia, reserves were considerably smaller, with an average of 20 acres granted per family.  53 When BC joined Confederation in 1871, it agreed to give lands to the federal government to be used as Indian reserves in the province.140 Not surprisingly, when BC conveyed the reserves to Canada, the province was determined to give up as little land as possible.141   Reserve lands and Aboriginal interests were agreed upon between the federation and the province without the participation of Indian communities. In 1875, the federal and provincial governments started negotiating the question of the size and allocation of reserves, establishing several ?commissions,? the first one called the BC Reserves Commission. The BC government participated in the federal/provincial joint commissions on the condition that no recognition would be given to an underlying Indian title. 142  The final report of the McKenna-McBride Commission 143  was confirmed through legislation in both levels and is the basis for how the process of allocating reserves was done in BC.144 The federal and provincial governments agreed upon the size of twenty acres per family, which did not apply to established reserves but only to future reserves.145                                                 140 British Columbia "Terms of Union" being a schedule to an Order of Her Majesty in Council admitting BC into the Union of May 16, 1871, RSC 1970 Appendix II, 279. The O/C 1036 and Privy Council Order 208 conveyed most of the reserves in BC to the Dominion. This agreement is part of the Constitution of Canada. 141 Donald Smith, supra note 95, cites Keith Thor Carlson, ?Indian Reservations,? in Kate Blomfeld et al., A St?:lo; Coast Salish Historical Atlas, (Vancouver: Douglas & McIntyre, 2001), at 94.:  Historian Keith Thor Carlson calls reserve creation in British Columbia: ?the government?s attempt to skirt its political and legal obligation to negotiate with Aboriginal people and to provide compensation for alienated land and resources. In effect, it was an effort to extinguish Aboriginal title through administrative and bureaucratic means. 142 Richard C. Daniel, A history of Native Claims processing in Canada 1867?1979 for Research Branch, of the Department of Indian & Northern Affairs, February 1980, at 206.  143 Ibid. This Commission was established in 1913 and had five members: two members appointed by the province, two members appointed by the Dominion and one to be appointed by the commissioners themselves and settled a large number of the reserves in BC. The final report was given in 1916.  144 N.D. Banks, supra note 135, at 140. According to the Union of BC Indian Chiefs? website, online: <http://www.ubcic.bc.ca/files/PDF/app_b.pdf>, and Donald Smith, supra note 95, at 24, some years later in 1929, the federal and provincial government signed the Scott-Cathcart Agreement affecting particularly, but not only, the reserves in the Railway Belt and Peace River Block. 145 Ibid., at 37:  When the federal government compared the Indian reserve policy of BC to other parts of the country, BC?s "ten acre per family" measure was far below what the federal government considered to be reasonable. The disagreement on the measure prompted several periods of tension between the Federation and BC. The negotiations on the size of the reserves continue until this day. BC formally transferred to Canada the lands for the already established reserves for Indigenous peoples in 1938. One acre is equivalent to 4,047 square meters and 0.4 hectares.   54  According to the agreements between the federal and provincial governments, the Crown in right of BC gave administration and control over certain lands to the Crown in right of Canada, in trust for the use and benefit of the Indians.146 The province kept the right to resume a portion of reserve land for public purposes.147 The Indian Affairs Settlement Act gave the provincial executive the flexibility to conduct further negotiations and enter into further agreements.148   In 1992, the province established the BC Treaty Commission, a provincial government agency in charge of negotiating treaties with Indigenous peoples, which started working in 1993.149  The BC Treaty Commission has successfully achieved the completion of two agreements since 1993: Tsawwassen and Maa-nulth.  Today, Aboriginal title is considered to be ?the right to the exclusive occupation of land, which permits the Aboriginal owners to use the land for a variety of purposes,?150 like hunting, fishing and harvesting. It is not the only scheme that exists to own land communally in Canada, but is the scheme exclusively in use for Indigenous peoples. In principle, Aboriginal title cannot be sold to third parties. Certain Indigenous land rights can be sold through special means but always with the consent of the federal government.   There are many uncertainties about the reach of Aboriginal title but according to the courts, it is an Aboriginal right. Aboriginal rights are integral to the distinctive culture of an aboriginal society. 151 Aboriginal rights vary according to the extent of the pre-existing interest of the relevant individual, group, or community. The precise nature                                                 146 British Columbia Order?in?Council No. 1036, July 29, 1938. 147 Section 35 of the Indian Act RSC., 1985, c. I-5. 148 Indian Affairs Settlement Act, Chapter 32 of the Statutes of British Columbia, 1919. 149 BC Treaty Commission website. Online: <http://www.bctreaty.net/files/quickfacts.php#commission>. 150 Peter Hogg, Constitutional Law of Canada, supra note 96, at 637. 151 R. v Van der Peet, [1996] 2 SCR 507.  55 and content of the right, and the area within which the right was exercised are questions of fact.152   Even though the courts have been the most active in describing the legal label of Aboriginal title, and Aboriginal title is mainly regulated by common law, no Canadian court has ever granted Aboriginal title. The closest attempt has been by Judge Patrick Mahoney (federal court) in 1979, who declared that particular lands ?are subject to the Aboriginal right and title of the Inuit to hunt and fish thereon? in the Baker Lake decision.153 The question of title was not decided in detail in the decision. The question of title in Baker Lake was settled later in the Nunavut Land Claims Agreement, which is the largest Aboriginal land claim settlement in Canadian history. Aboriginal title has only been agreed upon in treaties signed between the provinces, the federal government, and the Indigenous nations in Canada.    3.1.1.4 The Gitksan and the Wet?suwet?en peoples  In the suit, the Gitksan and Wet?suwet?en argued that their ancestral territory includes 58,000 square kilometers of the province of BC. This claim was not based on a document, but on their own oral records, their adawaak (owned stories), and their laws. Up to that point, no authority in Canada or abroad had recognized the territories of the Gitksan and the Wet?suwet?en peoples as theirs.   According to Chief Justice McEachern of the BCSC, the territory claimed by the Gitksan and Wet?suwet?en chiefs included several towns, cities, villages, sixty-two reservations (that in total were 45 square miles154), municipalities, federal areas (railways, etc.), provincial and national parks, and privately owned properties. The                                                 152 Courts have also described aboriginal rights as site specific. This is not yet settled; it is one of the contested issues in the case of William v British Columbia, 2012 BCCA 285 reviewed in November 2013 by the SCC.  153 Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development, [1980] 1 FC 518 (TD)  154 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 12, 184. 45 square miles are equivalent to 116 square kilometers.   56 territory was populated by around 4,000 to 5,000 Gitksan, 1,500 to 2,000 Wet?suwet?en people, and more than 30,000 non-Indigenous peoples.155  Gitksan peoples are Tshimshanic-speaking Aboriginal peoples who are located primarily on the north and central Skeena River and its tributaries above Kitselas Canyon, and the Nass and Babine Rivers and its tributaries. Most of them now live in villages along the Skeena River. There are six Gitksan communities: Kitwangak, Gitanyow (Kitwancool), Kitseguekla, Gitenmaax (Hazelton), Kispiox, and Glen Vowell.156 It is important to note, however, that the Gitksan houses of Kitwancool did not participate in the case. They decided to claim separately their own territories, which are in the drainage areas of the Cranberry and Nass Rivers between areas claimed by the Nisga?a and the rest of the Gitksan.   The Wet?suwet?en are an Athabaskan-speaking Aboriginal people who claim areas mainly in the watersheds of the Bulkley and parts of the Fraser-Nechako Rivers systems and their tributaries, east and south of the Gitksan. Most of the Wet?suwet?en peoples live in two villages alongside the Bulkley River, Hagwilget, and Moricetown.157   The Gitksan and Wet?suwet?en peoples came to the courts dressed in regalia with their ayuks (crests, symbols) and many gave their evidence in their own language. Most of their evidence was the telling of their stories. They explained to the courts their social organization, their laws, their rules, and their way of understanding their reality in ways that the two Ainu plaintiffs and the community of Zirahu?n did not in the Nibutani Dam and Zirahu?n cases. This was mainly because these latter plaintiffs were not required to do so, because their character as Indigenous peoples was not as contested as it was in Delgamuukw, where the provincial government questioned that their ancestors were members of an organized society, as required by the test in the                                                 155 Ibid. at Part 2, 10-11.  156 Ibid.   157 Ibid.    57 Baker Lake decision.158 Moreover, the plaintiffs in Delgamuukw arrived in the courts not using the institutions for representation established by the Indian Act, the band councils, but using their traditional institutions of representation, the houses? chiefs.  History According to Richard Daly, the Gitksan and Wet?suwet?en peoples have been organized in houses and clans since before the first European settlers arrived at their territories. 159  They have chiefs who decide, with the participation of their communities, on how to administer certain hunting, gathering, fishing and trapping sites. The main resource of the people is salmon and the rivers that divide, surround, and comprise their territories. The communities traded with each other and with neighboring nations for goods. They had large and small villages in the territory and celebrated feasts on certain important occasions (such as marriage, funerals, and thanking ceremonies), where goods, social capital, and resources were distributed and quarrels resolved. The Gitksan and Wet?suwet?en have rich expressive forms of art, which share certain similarities mainly due to the fact that they are very closely connected to each other.160   The first European explorers that arrived in British Columbia landed in the 18th century and were from Russia, Spain, and England.161 In 1670, the Hudson?s Bay Company (HBC) was granted a monopoly of the trade of a large part of North America, and was the owner of more than 40 percent of what is now known as Canada.162 In 1821 HBC, which had been merged with the North West Company,                                                 158 Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development, [1980] 1 FC 518 (TD) In this decision, Judge Mahoney established that the elements which the plaintiffs must prove to establish an Aboriginal title cognizable at common law are: 1. That they and their ancestors were members of an organized society; 2. That the organized society occupied the specific territory over which they assert the Aboriginal title; 3. That the occupation was to the exclusion of other organized societies; and 4. That the occupation was an established fact at the time sovereignty was asserted by England.   159 Richard Daly, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver: UBC Press, 2005). 160 Ibid.   161 Ibid., at 228. 162 The Royal Charter for incorporating The Hudson's Bay Company, AD 1670 (online: <http://www.solon.org/Constitutions/Canada/English/PreConfederation/hbc_charter_1670.html>). In 1821, when the Company merged with the North West Company, the Charter was renewed for a period of 21 years and its  58 started running several trading posts in what now is British Columbia.163 The first governor of the colony of British Columbia, and of Vancouver Island, was a high-ranking officer of the HBC named James Douglas. In the first years of contact, Indigenous nations traded with the European settlers. HBC and other explorers were particularly interested in fur, but also in fishing, canning, lumber, and mining. Indigenous peoples traded mainly fur for different goods such as metal tools, copper sheets, clothes, blankets, etc.  It is usually considered that in the first years of contact there were good relations between the European settlers and the Gitksan and Wet?suwet?en peoples.164 The HBC established the first trading post, Fort Kilmaurs, close to Gitksan territory at Babine Lake in 1822.165 In 1826, the HBC established a second post in the territory, Fort Connolly at Bear Lake. William Brown, one of the first fur traders in the area, wrote records of his encounters with the societies with which he traded that were used during the trial.166 The records of Daniel Williams Harmon, who was also a fur trader in the area, were also used at trial and referred mainly to the Wet?suwet?en.167 According to both records, Indigenous leaders of both nations had control of certain areas and access to those areas had to be granted.168 The leaders also determined the amount of hunting and trapping allowed. The records also mentioned the existence of properties owned individually, reflecting a certain degree of individual control over the land.169                                                                                                                                          monopoly extended from Labrador to the Pacific, from the Pacific Northwest to the Arctic Ocean, an area approximating one twelfth of the Earth?s land mass. See also the Deed of Surrender of 1869. The National Archives of the UK, ref.CO42/694.   163 Hudson?s Bay Company?s website, online: <http://www2.hbc.com/hbc/history/>.   164 Patricia D. Mills, ?Reconciliation: Git?xsan property and crown sovereignty? PhD Thesis, UBC Faculty of Law (Vancouver: University of British Columbia, 2005), at 11. 165 Delgamuukw v British Columbia [1991] 3WWR 97; 79 DLR(4th) 185; 5CNLR5; CanLII 2372 (BCSC), at 25.  166 Proceedings of the Supreme Court of British Columbia 1990-04-20, volume 326, 24890-24904. Submissions by Mr. Adams in the Delgamuukw trial, which also contained explanations of the materials by Brown made by Professor Arthur Ray, one of the experts offered by the plaintiffs. Dara Culhane, ?Delgamuukw and the People without culture: Anthropology and the Crown? PhD Thesis, SFU Department of Sociology and Anthropology (Vancouver: Simon Fraser University, 1994), at 248-249.  167 Ibid. 168 Ibid. 169 Ibid.  59 European contact with the Gitksan and Wet?suwet?en peoples was not as broad as the contact with the Haida and other nations that lived further south or on the coast of BC. Even after the arrival of European traders in their territory, the Gitksan and the Wet?suwet?en continued to trade mainly through their usual networks. William Brown considered that it was difficult to establish profitable direct commerce with them.170 In the late 1860s, trails and the telegraph line were constructed in Gitksan territory using Indigenous labour.171 A little later, canneries and sawmills were established where mainly Indigenous peoples worked.172 It is considered that the extended families and communities had a say in who would work and for how long, with the aim of balancing the many activities and the wealth of the communities.173  Subsequently, in 1880s, gold was found in Omenica and many people traveled across Gitksan territory, increasing contact.174   Several diseases such as smallpox and measles destroyed or weakened entire communities in the Canadian Northwest and in other parts of North America, such as Mexico.175 According to some sources, the first important epidemics occurred in the center and north of British Columbia in the 1830s.176 It is believed that smallpox killed several thousand people following an especially bad epidemic in 1862, when smallpox claimed 30 percent of the Gitksan population.177 In the 1860s and 1870s, several villages were abandoned, such as Gitsaex and Gitlaxdzawk. Eventually, due to the increased number of settlers in the territories, the epidemics, and the imposition                                                 170 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 4, 25-26. Chief Justice McEachern also mentions that Brown also recognized that beaver returns were never what he hoped they would be, and that he had great difficulty getting the Indians in his area to be as industrious in their trapping as he wished they would be.  171 Richard Daly, supra note 159, at 129. 172 Ibid. 173 Ibid., at 130.  174 Ibid. 175 Bradley R. Howard, Indigenous Peoples and the State: The Struggle for Native Rights (USA: Northern Illinois University Press, 2003), at 39-40; estimates that by the end of the 19th century, over 94 percent of all Aboriginal people in the Americas had died as a result of war or disease. This is a very contested number.  176 R. Boyd, ?Smallpox in the Pacific Northwest, The First Epidemics? (Spring 1994) BC Studies No. 101, at 6 and 40. Chief Justice Allan McEachern in Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC) recognized this fact in the case, at Part 4, 25. Richard Daly, supra note 159, at 108 does not mention a number but writes about lethal epidemics.  177 Robert S. Grumet, "Changes in Coast Tsimshian Redistributive Activities in the Fort Simpson Region of British Columbia, 1788-1862" (1975) 22 Ethnohistory, 4, at 294-318.  60 of reserves, the first conflicts between the Gitksan and the Wet?suwet?en and the new immigrants occur.     According to James A. McDonald and Jennifer Joseph?s text on ?Key Events in the Gitksan encounter with the Colonial World,?178 in 1861, the Legislative Assembly of Vancouver Island petitioned for the last time to extinguish Aboriginal title in BC.179 The Assembly was not successful in declaring the extinguishment of Indigenous title in the province due to a lack of funds to pay for the surrender of land. In late 1860s, BC established its system of Indian reservations giving ten acres per Indigenous family and a land policy that allotted 160 acres of land to any British subject willing to use and improve the land, explicitly excluding Indigenous peoples.180 Timber policy between 1864 and 1888 allowed the sale of timber leases to European loggers in the colony, which also excluded Aboriginal people. 181  In 1884, the federal government outlawed the feasts (also called potlatch), a major social, economic, and political institution of Pacific North Coast First Nations.182   The first recorded dispute between the Gitksan and the European immigrants was the Skeena River blockade in 1872. The Gitksan blockaded the Skeena River to protest the destruction of eleven village longhouses and thirteen totem poles by traders and miners in Gitsegukla. The government feared that the protest would prevent river transport and Liutenant Governor Joseph Trutch visited the Gitksan accompanied by several naval vessels.183 Gitksan chiefs met with Trutch to resolve the dispute and successfully negotiated compensation for the families.                                                  178 In Margaret Anderson and Marjorie M. Halpin (Eds.), Potlatch at Gitsegukla: William Beynon's 1945 Field Notebooks (Vancouver: UBC Press, 2000). 179 James A. McDonald and Jennifer Joseph cite Peter A. Cumming, Neil H. Mickenberg, Indian-Eskimo Association of Canada, ?Native rights in Canada? (Chicago: Northwestern University, 1972) Volume 2687 of Native American legal materials collection, at 177. 180 M.A. Ormsby, British Columbia: A History (Toronto: Macmillan, 1958), at 179. 181 G.K. Ainscough, ?The British Columbia Forest Land Tenure System? in W. McKillop and W. Mead, Timber Policy Issues in British Columbia (Vancouver: UBC Press, 1976), at 35. 182 Indian Act, 1884 Section 3. Many Gitksan chiefs openly held feasts and as a result were arrested by the Royal Canadian Mounted Police with the help of Indian agents during the many years that that law was in force (until 1951).   183 Patricia D. Mills, supra note 164, at 19.  61  The first reserves in Gitksan territory, mainly around the Skeena villages, were established in 1891. The reserve commissioners found hostility in the area during their surveys and studies. During the settlement of the reserves, the Indigenous peoples were informed by the commissioners that these processes would not interfere with their Aboriginal rights or prejudice their claims184 which were expected to be dealt with later by the courts.   In 1909, Gitksan chiefs met with Special Commissioners Stewart and Vowell (appointed by the Department of Indian Affairs) and expressed their concerns with their rights over their land.185 In 1910, the chiefs sent a petition to Prime Minister Wilfrid Laurier protesting against the dispossession happening in their unceded land and requesting their recognition of the ownership and rights over their territory.186 The chiefs did not obtain any recognition of their title and jurisdiction, but more surveys were done in their territories.   From 1909 to 1920, Gitksan chiefs continuously stopped surveyors and road building in their valley, leading to the arrest of many of their leaders.187 In the following years, more land was taken for the railway and the size of the reservations was decreased while protests continued. As a result, in 1915, many First Nations groups formed the Allied Tribes of BC. This association pursued legal cases on Aboriginal rights.   In the late 1920s, the House of Commons and Senate inquired into some of the claims by Indigenous nations in BC but rejected them.188 From that moment forward, it                                                 184 Proceedings of the Supreme Court of British Columbia 1989-05-18, volume 228, 16533 ? 16536, which include a section of the testimony of R. Galois in the Delgamuukw case.  185 Richard Daly, supra note 159, at 199. Patricia D. Mills, supra note 164, at 46 cites a piece in the papers: ?Indian Unrest,? [Vancouver] Province (16 July 1909). 186 Ibid. at 49. 187 Don Money and Skanu?u (Ardythe Wilson) Colonialism on Trial: Indigenous Land Rights and the Gitksan and Wet?suwet?en Sovereignty Case (BC: Gabriola Island New Society, 1991), at 11.  188 Appendix to the Journals of the Senate of Canada, First Session of the Sixteenth Parliament 1926?1927, Special Joint Committee of the Senate and House of Commons Appointed to Inquire in the Claims of the Allied Tribes of British Columbia, as set forth by their Petition submitted to Parliament in June 1927, Report and Evidence, at 219 and 250.   62 became obvious that government institutions were disregarding the First Nations? claims and petitions, denying them any interest in the lands. In 1927, an amendment to the Indian Act was passed prohibiting the raise of funds for court cases.189   In 1931, different nations, including the Gitksan and Wet?suwet?en peoples, formed the Native Brotherhood of British Columbia, which succeeded the Allied Tribes of BC. 190  In 1968, the Gitksan-Carrier (Carrier is a former name used by the Wet?suwet?en Nation) Tribal Council is established, which, in 1977, issued a declaration of sovereignty and rights and demanded land claims negotiations.191 Neither the provincial nor federal government agreed to negotiate.  According to the lawyers interviewed for this study, constant and increasing prosecutions and confiscation of hunting and fishing tools were common in Gitksan and Wet?suwet?en territory, which prompted the community to frequently seek legal advice. These prosecutions and confiscations were the main cause behind the filing of the Delgamuukw claim by Wet?suwet?en and Gitksan chiefs in 1984.192                                                                                                                                        It seems that the rejection is due to a certain degree of deference to the provincial government and its policies, and stands on an interpretation of Section 109 of the Constitutional Act of 1867, which states: British Columbia, Ontario, Qu?bec, New Brunswick, and Nova Scotia are given constitutional control over their land and natural resources, in connection with article 13 of the Terms of the Union, which stated that the Dominion (Canadian) government held responsibility for Indians and the trusteeship and management of  lands reserved for Indians. At the moment, the interpretation of what ?reserved lands? meant was contested, and the Committee seems to defer to the interpretation of the provincial government that ?reserved lands? meant lands already set as reserves by the provincial government.  189 Royal Commission on Aboriginal Peoples, ?Indian Act 1927,? in The Report of the Royal Commission on Aboriginal peoples, vol. 1, part 1: The Relationship in Historical Perspective, Stage Three: Displacement and Assimilation. (Ottawa: The Commission, 1996). Online at: <http://www.collectionscanada.gc.ca/webarchives/20071115053257/http://www.ainc-inac.gc.ca/ch/rcap/sg/sgmm_e.html>.  190 See the Native Brotherhood of British Columbia website. Online: <http://nativebrotherhood.ca/wp-content/uploads/2011/07/constitution.pdf>.  191 See Gitxsan Chiefs Office website. Online: <http://www.gitxsan.com/our-history/history-of-resistence.html>.  192 Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011. According to Mr. Rush and Prof. Jackson, legal advice was and continues to be expensive. The cost of the lawyers? fees for the case of Delgamuukw was partly provided by a fund (Test Case Fund) of the federal government to which the communities could apply at that time, but is not available any longer. The lawyers of the Hereditary Chiefs received considerably lower fees than those received by the federal and provincial governments? lawyers. Michael Jackson mentioned that their fees only covered for one week of work of four in one month. Prosecutions and confiscations are still very common in the territories.   63 Moreover, Gitksan and Wet?suwet?en peoples organized blockades and protests from the beginning of the 20th Century against timber, construction, and fishing licenses. The protests continued after the presentation of the Delgamuukw case. Large and continuous protests and blockades happened in 1985, 1986, 1988, 1989, 1990, 1991, 1993, and 1995 while the Delgamuukw case was being prepared and on appeal.193 The blockades and protests caused many members of the communities to be imprisoned and reflect many of the issues that were at stake in the case of Delgamuukw.   In 1989, when the Department of Indian Affairs closed its Hazelton office, the nine band councils organized themselves into three main organizations: The Office of Hereditary Chiefs, The Gitksan-Wet'suwet'en Education Society, and the Gitksan-Wet'suwet'en Government Commission.194 Since the beginning of the 1990s, chiefs can exercise jurisdiction over minor criminal cases involving their house members.195 These organizations succeeded the band councils, institutions established through the Indian Act.196 Today, both nations are struggling with internal divisions while the question of their land claims continues to be unresolved.197  3.1.2 The claims at trial Several chiefs of the Gitksan and the Wet?suwet?en, both individually and on behalf of seventy-one houses, sought the recognition of their ownership of, and jurisdiction                                                 193 See the Native Brotherhood of British Columbia website, supra note 190. Richard Daly, supra note 159, at 56. 194 See Neil J. Sterritt and Robert Galois, Tribal Boundaries in the Nass Watershed (Vancouver: UBC Press, 1998) and Wilson Duff, Histories, Territories and laws of the Kitwancool (Royal British Columbia Museum, 1989). See also James MacDonald, People of the Robin (Edmonton: CCI Press, 2003).  195 See the program called ?Unlocking aboriginal justice.? Online: <http://www.wetsuweten.com/departments/human-and-social-services/wetsuweten-unlocking-aboriginal-justice>. James McDonald and Jennifer Joseph, ?Key Events in the Gitksan encounter with the Colonial World? in Margaret Anderson, supra note 178, at 213.  196 James McDonald and Jennifer Joseph, supra note 178. See also Antonia Curtze Mills (ed.) Hang Onto These Words': Johnny David's Delgamuukw Evidence (Toronto: University of Toronto Press, 2005), 197 See, for example, the continuous issues that arise among the Gitksan such as the blockade to the Gitxsan Treaty Society, reported by the Globe and Mail website. Online: <http://www.theglobeandmail.com/news/british-columbia/judge-perplexed-that-illegal-gitxsan-blockade-is-still-in-place/article4105794/>; the Treaty Commission of British Columbia website, online: <http://www.bctreaty.net/nations/gitxsan.php> and <http://www.bctreaty.net/nations/wetsuweten.php>. Other government websites in British Columbia, online: <http://www.gov.bc.ca/arr/firstnation/gitxsan/#negotiations>. See also the recent decision Gitxsan Treaty Society, 2012 BCSC 452.  64 over, 133 territories. They claimed costs of the action and a legal declaration from the court that established the following:198 1. That the plaintiffs have a right to own the land and a right to have jurisdiction over the territory;  2. That these rights include the right to use, harvest, manage, conserve and transfer the lands and natural resources, and make decisions in relation thereto;  3. That these rights include the right to govern the territory, themselves, and the members of the Houses represented by the plaintiffs in accordance with Gitksan and Wet?suwet?en laws, administered through Gitksan and Wet?suwet?en political, legal, and social institutions as they exist and develop; 4. That these rights include the right to ratify conditionally or otherwise refuse to ratify land titles or grants issued by the defendant province after October 22, 1984, and licenses, leases, and permits issued by the defendant province at any time without the plaintiffs? consent; 5. That their rights are recognized and affirmed by Section 35 of the Constitution Act, 1982; 6. That the Province?s right over the lands, mines, minerals and royalties within the plaintiffs? territory is subject to the plaintiffs? rights pursuant to Section 109 of the Constitution Act, 1967; 7. That the Province?s ownership and jurisdiction over the territory of the plaintiffs, and members of the houses represented by the plaintiffs is subject to the plaintiffs? right to ownership and territory, and that BC cannot interfere with the rights of the plaintiffs; 8. That the plaintiffs are entitled to govern the territory by Aboriginal laws which are paramount to the laws of BC; and 9. That the plaintiffs are entitled to damages from BC for the wrongful appropriation and use of the territory, or by its servants, agents, or contractors, without the plaintiffs? consent since 1858, as well as damages for any harm to,                                                 198 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5CNLR5; CanLII2372 (BCSC), at 41.  65 or resources removed from, the territory by or under the authority of the Crown since that date.? (The amount of damages was not dealt with at trial.199)  The plaintiffs also claimed the right to terminate all less than fee simple legal interests in the territory, such as logging, mining, and other licenses, and a lis pendens against BC over an area of the territory.200   The main argument of the original claim was that the Gitksan and the Wet?suwet?en had been living on the land since time immemorial, that they had never ceded their rights over the land, and thus, according to the common law, they owned the land and had jurisdiction over it.   According to the lawyers, the plaintiffs did not see their legal expectations covered by the existing concept of Aboriginal title, and considered that ?fee simple ownership? was the closest legal scheme to that of each nation?s concept of Aboriginal right in the land. In other words, the plaintiffs argued that their Aboriginal right ?as claimed? was equivalent to ownership in fee simple.201   Fee simple ownership means that the Crown does not have any beneficial interest, administration or control over the land.202  The province may keep the right to regulate certain uses of the land but it no longer benefits from that land.203  The plaintiffs argued that the main difference between their concept of Aboriginal right in the land and the legal concept of fee simple ownership was that the plaintiffs cannot                                                 199 Ibid., at Part 16, 255:  The plaintiffs did not press these claims in argument and I understand the rights asserted against the Indians arose under what I must assume was valid Canadian or British Columbia legislation.  I am satisfied the plaintiffs have not established any claims for damages in this action. 200 Ibid., at Part 6, 43. For the territory see also pages 6 -9, Schedule ?A?, and the delineated map in Schedule ?B?. 201 Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011 and Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011.  202 Ibid.  203 Ibid.   66 alienate their lands by sale, transfer, mortgage, or other disposition except to Canada by treaty concluded at a public assembly.204   They also argued that their ownership of the territory entitled them to govern the territory free of provincial control in all matters where their traditional laws conflicted with provincial law.205 This exclusive governance and control over the land and the members of their houses was what they claimed as ?jurisdiction? over the territory.206   The plaintiffs requested from the courts a declaration that they could govern their peoples and territories without intervention from the provincial government. According to the trial judge, this plea had the aim that if any of their house members decided not to obey any provincial law and proceedings were brought to force compliance, such a member could plead their traditional laws and the declaration of the court in their defense.207   The plaintiffs acknowledged the underlying title of the Crown to the lands, but asserted that their claims constituted a burden upon that title. According to the trial judge, the plaintiffs could not avoid this reasonable admission.208 It sets the legal basis for any discussion of title. The plaintiffs claimed that the BC provincial government had been violating their rights (ownership and jurisdiction over their land) by imposing its jurisdiction on their communities.209  During trial, the court allowed a de facto amendment to permit ?a claim for Aboriginal rights other than ownership and jurisdiction.?210 The courts considered the                                                 204 Ibid. Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 3, 15. 205 Ibid., at Part 3, 16. 206 Ibid.  207 Ibid.  208 Ibid., at Part 10, 79. 209 Ibid., at Part 3, 16. 210 Ibid., at Part 6, 40.  67 plaintiffs? claim not to be a typical collective or communal claim. The Delgamuukw case was not a joint claim to the whole territory but claims of specific Houses of both peoples.211 Each chief claimed one or more territories as his/her own or on behalf of the rest of the members of their houses. This presented an obvious challenge for the trial judge, who did not understand why they did not use the organs of representation established by law (band councils), since in his perspective it would have made it easier to advance their claim.212 Nevertheless, the judge did recognize that in the long term this decision had positive consequences for the maintenance of the Gitksan and Wet?suwet?en cultures.213   The Gitksan and Wet?suwet?en peoples are divided into clans and houses. There is not a chief of the entire community but a group of chiefs of the different Houses that resolve in council issues that involve the entire or a part of the community. Each chief is responsible for her/his own houses and territories. The houses follow a matrilineal line and organize feasts and councils for public-accounting and decision-making.214 The view of the Gitksan and Wet?suwet?en was that in order to correctly share and prove their laws to the courts, they had to come to court following their own laws, institutions, and rules of etiquette. They came as an entire community that interacts with each other upon the same laws, institutions, and rules; but could only attest for each territory individually, because there is no high institution or chief that knows the reasons behind all the boundaries of their different communities. For them to ?know? the reasons behind the boundaries is to ?own? the boundaries.215  Public accounting and decision making happens in the feasts and reunions that have been held and continue to happen to socially recognize these laws.216                                                   211 Delgamuukw v British Columbia [1993] 5 WWR 97, at para. 73 212 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 5, 37. 213 Ibid., at Part 5, 31- 37. 214 Ibid., and Richard Daly, supra note 159.  215 Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011 and Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011.  216 Richard Daly, supra note 159, at 57.   68 The plaintiffs came as representatives of their houses and of their communities with two objectives. They came as representatives of their houses so that they could prove the laws and boundaries of their respective territories, and they came as representatives of their entire communities so that they could obtain a legal decision that affects them equally as inhabitants of a territory with a homogenous legal system that has existed since before the arrival of the European settlers.217    The defendant?s argument The Province, as the defendant, counterclaimed that the Gitksan and Wet?suwet?en had neither right nor title to the Claim Area or the resources thereon, thereunder, or thereover.218 The Province also counterclaimed that, if any declaration was made regarding the plaintiffs? action, it should be for compensation from Her Majesty the Queen in right of Canada (the federal government), and not in right of British Columbia. 219  One of the arguments used by the Province was that the Gitksan and Wet?suwet?en were not an organized society.220 Only an organized society could ?have? a concept of land ownership that could be protected today. Moreover, the Province argued that there were no Aboriginal interests similar to what the plaintiffs meant by ?ownership? and ?jurisdiction? in the territory to which the Gitksan and Wet?suwet?en were entitled.221                                                    217 Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011 and Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011.  218 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 6, 43. 219 Ibid.  220 As it has been explained above, this was requirement imposed in the previous Aboriginal right case of Baker Lake (Hamlet) v Minister of Indian Affairs and Northern Development, [1980] 1 FC 518 (TD)  221 Trial transcript of hearing at the British Columbia Court of Appeal in the case of Delgamuukw in session on Friday, June 5, 1992, 2:00 p.m., at 1651.  69 Furthermore, the Province argued that Aboriginal title in BC had been extinguished.222 The Province argued that the policy of the colony had been that the territory was open for settlement with the exception of Indian villages and the surrounding hunting and farming fields.223 According to the Province, the colony and later the province had ruled that Indigenous peoples could use the rest of the vacant public lands, just as everybody else could, and thus there was no room for Aboriginal interests in the land.224   The Province also argued that the Royal Proclamation of 1763 had no application in BC because BC was not part of Canada at the time.225 Another argument was that Aboriginal rights were settled with the allocation of reserves and subsidies.226 Moreover the defendants argued that many of the areas claimed had been abandoned by long periods of non-Aboriginal use.227   The claims and counterclaims changed considerably in form and substance during the trial and the appeals. It seems that there were eight amended statements of claim during the trial proceedings alone.228 The original claims changed from ?ownership? and ?jurisdiction? to that of ?Aboriginal title? and ?self-government.? 229  In my perspective, the changes reflected a constant need in the part of the plaintiffs to adapt to the rules that were being defined (in the trial process) regarding Aboriginal title, the ways to prove it, and the impossibility of claiming according to their own perspectives. This is not unusual in Canada, where courts often re-characterize                                                 222 Delgamuukw v British Columbia [1991] 3 WWR 97; 79 DLR (4th) 185; 5 CNLR 5; CanLII 2372 (BCSC), at Part 15, 233. 223 Ibid., at Part 15, 242.  224 Ibid., at Part 10, 81. 225 Ibid., at Part 10, 84-98. 226 Ibid., at Part 13, 187.  227 Ibid.  228 Ibid., at Part 6, at 40. Most of the statements were to add or delete plaintiffs who had changed (died) during the course of the trial. Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011. 229 According to Stuart Rush, no case had found ?ownership? and ?jurisdiction? but previous cases (such as Calder) had recognized the right of ?Aboriginal title.? Stuart Rush, QC, Counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 14 December 2011.  70 Aboriginal constitutional claims.230 In this case, the claims of the Gitksan and Wet?suwet?en had to be fitted into a particular ?box? or else they would not be reviewed.   3.1.2.1 Study of evidence To prove that the nations of the Gitksan and Wet?suwet?en existed, were organized, had a distinctive culture, language, and traditions, and lived in the claimed territory since before contact, the plaintiffs called twenty-four witnesses and twenty-one experts, filed fifty-three territorial affidavits and 9,200 exhibits, and presented around 3,000 pages of commission evidence.231  Several chiefs and elders attested to the oral histories (adaawk and kungax) that establish their territories, which are a large part of their law.232  Some of the testimony was given through commission evidence in the homes of elders due to their inability to travel.233  The experts called were historical geographers, anthropologists, linguists, genealogists, archeologists, fishery scientists, and cartographers.234 They were used to confirm (and translate in a way) the testimonies of the many members of the community and the elders. Another piece of evidence was an aerial overview of the territory in helicopter trips, where several community members explained their views about the use of the land.235   The oral histories provided by the elders presented a huge challenge because this kind of evidence falls within the category of hearsay (their stories had been told to them) by Canadian evidence law.236 In the beginning of the trial, the Province?s lawyers                                                 230 John Borrows, Canada?s Indigenous Constitution (Toronto: University of Toronto Press, 2010), at 265. 231 Delgamuukw v British Columbia [1991] 3WWR 97; 79 DLR (4th)185; 5 CNLR 5; CanLII 2372 (BCSC), at 2. 232 Ibid., at Part 1, 1.   233 Ibid. Michael Jackson, QC, Co-counsel for the Appellants: The Gitksan Hereditary Chiefs, interview with author, 15 November 2011. 234 Ibid.  235 Ib