In May of 1987, the Gitksan aboriginal people entered the Canadian legal system to seek justice. It was an unprecedented opportunity for Chief Justice McEachern of the British Columbia Supreme Court to find a just and lawful process to place the Gitksan within the context of Canada. Almost four years later, the Chief Justice handed down his "Reasons for Judgement" in Delgamuukw et al. v. The Queen (8 March 1991). The decision in Delgamuukw was a stunning disappointment. The Chief Justice concluded that according to Anglo-European law the Royal Proclamation of 1763 does not apply in British Columbia and that any sovereignty, jurisdiction, or title the Gitksan may have, which he says is next to none, has in any case been extinguished. Indeed, according to the decision, the Gitksan have no land-based aboriginal rights at all. This paper will begin with a description of the very divergent views that aboriginal peoples and Western society have of the world and how this in turn affects their property systems. I will then analyze how Chief Justice ,through a Western view of the world and, specifically, the view that the Gitksan are a 'primitive' people, constructed a screen of judicial bias. I will also analyse the final ingredients of the sifting process and raise serious questions as to whether Chief Justice McEachern's findings of law were based on relevant and accurate findings of fact. In other words, his method of finding fact and selecting legal precedent will be examined to determine the validity of the finding that the Gitksan do no not possess proprietary rights.
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B Douglas Cox, "The Gitksan-Wet' suwet'en as 'Primitive' Peoples Incapable of Holding Proprietary Interests: Chief Justice McEachern's Underlying Premise in Delgamuukw" (1992) 1 Dal J Leg Stud 141.