Land claims judge acknowledges he brought views with him

Vaughn Palmer
Vancouver Sun


Friday, November 23, 2007
http://www.canada.com/vancouversun/news/story.html?id=fe7420b4-abce-4e67-8a3d-55\
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VICTORIA - Toward the end of a lengthy ruling on aboriginal title this week,
B.C. Supreme Court Justice David Vickers paused for a personal admission.

"I confess that early in this trial, perhaps in a moment of self-pity, I looked
out to the legions of counsel and asked if someone would soon be standing up to
admit that the Tsilhqot'in people had been in the claim area for over 200
years."

This, mind, related to the central issue before the court. The Tsilhqot'in
natives claimed title over some 4,400 square kilometres of the Chilcotin. The
federal and provincial governments disputed the claim.

The court had to resolve whether the natives had occupied the claimed area to
the extent needed to qualify for aboriginal title. Was occupation continuous and
exclusive? Did it predate the assertion of Crown sovereignty over B.C.?

But apparently Justice Vickers wanted the parties to short-circuit those
considerations, concede that the natives had occupied the claimed area for the
required period of time, and get on with adjusting to the verdict.

Or as he puts it: "My view at this early stage of the trial was that the real
question concerned the consequences that would flow from such an admission."

Alas for him, he was unable to persuade the governments to go along. "I was
assured that it was necessary to continue with the course we were set on."

This opened the way to hundreds of days of court proceedings and many volumes of
testimony, capped by this week's close-to-500 page judgment.

But for all that, he assures us that "my view has not been altered since I first
raised the issue five years ago." His view then. His view now.

The Vickers decision has many such expressions of opinion, unusual for a Supreme
Court ruling, as the judge himself acknowledges.

"I have departed from the usual practice and expressed my views on some issues
that might not have been addressed but for the nature of the proceedings."

He justifies the departure by the hope that he can assist in bringing together
natives and non-natives. "A just reconciliation in the era of decolonization,"
as he puts it at one point.

He concedes that the court is not the best forum for doing this: "This case
demonstrates how the court . . . is ill-equipped to effect a reconciliation of
competing interests."

He concedes, moreover, that "these opinions are not binding on the parties."

But he can't help himself. "I have expressed an opinion that the parties are
free to use in the negotiations that must follow."

He closes with the hope that his decision will become the last legal word in
these proceedings.

"It would be tragic," he says, if the outcome were "seemingly endless appeals."

Vickers was clearly moved by the evidence in this case: "Every Canadian should
have the good fortune I have experienced over the past several years."

But he's also 73, just two years away from mandatory retirement. Was he hoping
the decision would stand unchallenged as a monument to his time on the bench?

If so, he presented views with major consequences in the political realm.
Consider the following passage as a for-instance.

"In acting as though it had constitutional authority over aboriginal lands in
B.C., the province has skated on thin ice for over a century. In reality, it
appears that the province has been violating aboriginal title in an
unconstitutional and therefore illegal fashion ever since it joined Canada in
1871."

The author of those words is Kent McNeil, law professor and author. But Vickers
says "I agree with Professor Kent McNeil," before quoting the passage cited
above.

Which is an extraordinary statement for a Supreme Court judge to make,
particularly when you consider that David Vickers served as B.C. deputy
attorney-general from 1973 to 1977.

If one accepts his current view, then during his four years as the senior civil
servant for legal and constitutional matters the province was acting illegally
and unconstitutionally as regards aboriginal people.

Not long after his stint as deputy attorney-general, Vickers sought the
leadership of the B.C. New Democratic Party, declaring: "I have been a
democratic socialist since my university days."

He didn't win the leadership, nor was he successful in a bid for a legislature
seat. A few years later, the then federal Conservative government elevated him
to the bench.

Ex-politicians-turned-judges can usually be counted on to put preordained views
aside and stick to the matters before them in court.

Readers will have to decide whether Vickers was governed by that practice in
this case, given the many instances where (as he tells us) "I have taken the
opportunity to decide issues that did not need to be decided."

vpalmer@...


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