Times Colonist (Victoria)


Les Leyne

Years in court, $30 million and a land claim drags on

The case is following a route laid out judiciously by a thoughtful, rational judge. The lawyers are clever, committed people. The clients are intelligently trying to protect their interests.

So with all the intellect and goodwill on display, why does the end result look like utter madness? With due regard to everyone involved in Roger Williams vs. The Queen, there has to be a better way.

Apart from being one of the best rodeo cowboys in the Chilcotin, Williams is also chief of a small Indian band that has a beef against the Ministry of Forests about logging rights.

Over the past 15 years the dispute has evolved into an epic land-claim case involving a significant swath of Chilcotin wilderness.

The case has followed the proper, logical route through the court system.

The people involved can recite all the milestones through which the case has progressed. But when you step back and look at it as a whole, it's an absurdity.

The bands involved want any logging in the region to be on their terms; the governments say it's Crown timber, so it will be handled on the government's terms. The argument evolved naturally into a dispute about whose land the timber is on. The legal crux of the case then came to rest on the question of whose land it was in 1846, when Britain signed an international treaty to acquire land north of the 49th parallel.

The Xeni Gwet'in and Tsilhquot'in people say they were living on the land and have been arguing that point for the past several years. The provincial and federal governments have responded by demanding the strictest proof of exactly what the extent of that occupation was.

Every campsite, every trail through the bush and every village has to be established and proved. So does the idea that the First Nations were organized enough to constitute a society that can claim ownership of anything.

At one point government lawyers were objecting to the Tsilhquot'in Nation's assorted legends being entered as evidence to show their connection to the land, on the grounds they were irrelevant.

The latest chapter of the case has run in a small courtroom in Victoria for the last four years. It's taken 335 days of testimony so far. Williams alone was on the stand for 44 days. There are 660 exhibits comprising hundreds of thousands of pages. One of them has 62 volumes.

Dozens of lawyers for the federal and provincial governments and the native bands have pored over fuzzy photocopies of birth certificates, recollections of missionaries and old Indian census records.

They'll make final arguments early next year and wrap up the whole thing in March and April. Maybe a year later the judge will make a decision. It will almost certainly be appealed to the Supreme Court of Canada.

And of course, you're paying for everything -- the federal lawyers, the B.C. lawyers and the dozen or more lawyers working on behalf of the First Nations. You're paying for all the elders who came down to testify about their history, for the anthropologist who spent 19 days on the stand and for the other experts who interpreted events of 160 years ago.

The Tsilhquot'ins' case was judged to be important enough to be heard even if they couldn't afford to pursue it.

So the governments were ordered to fund the action. B.C. alone has written cheques for about $7 million to date to cover the bands' action. And they're splitting the bill, so Ottawa has matched that.

The plaintiff's tab will be somewhere north of $15 million by the time it's over. The provincial and federal bills will be in the same ballpark.

The original estimate was under $1 million. There have been so many overruns that separate cases arguing about the costs have taken up a sizable chunk of the Supreme Court calendar.

It's going to add up to a staggering amount of money and already represents an amazing amount of hard work.

To what end? Maybe it will define aboriginal title more clearly. Maybe it won't.

The only alternative is to engage in treaty talks. That process has an equally bleak record when it comes to definitive progress in relation to the amounts of money laid out.

But that has changed recently.

There's one final agreement on the record now, and others are expected shortly. Nobody can force the Chilcotin natives to go that route and in practical terms, they are so far down the litigation route there's likely no turning back.

Maybe they'll be popping champagne corks years from now to celebrate the fact that it was all worth it.

But when taxpayers look at the money and the time spent on exhaustive reviews of historical details from 160 years ago and ask what any of it has to do with making things right in 2006, a lot of them will conclude there has to be a better way.