It is with great sadness that I learned of the passing of Leslie Hall Pinder on June 12th.
Pinder was a Canadian lawyer who successfully argued several influential court cases before the Supreme Court of Canada on behalf of the Indigenous peoples of Canada.
Pinder began her career as a lawyer in British Columbia in 1976 and worked with the Union of BC Indian Chiefs. In 1982, she formed her own law firm with Louise Mandell (Mandell Pinder LLP-Vancouver), working exclusively for Indigenous peoples. Unique at the time, Mandell Pinder LLP only employed female lawyers. Pinder was involved in title and aboriginal rights cases in 1987.
Note on terminology: The terms “Indian” and “Aboriginal” are often used interchangeably and are found in colonial policies and laws (i.e. Indian Act 1876, Constitution Act 1982, article 35.
The term “Indigenous” will be used in this article to refer to First Nations, Inuit and Métis and aligns with the United Nations Declaration on the Rights of Indigenous Peoples, implemented by Canada in 2021.
Very briefly, until 1951, the Indian Act made it illegal to obtain funds or counsel to advance matters relating to title or Aboriginal rights.
One of the first major legal cases, presented by Nisga’a chief Frank Calder in 1967, argued for the existence of ancestral title (occupation, use and control of ancestral lands by indigenous peoples before the era. pre-European).
In 1973, six justices of the Supreme Court of Canada recognized that Aboriginal title existed in Canadian law.
On aboriginal rights, in 1984, Musqueam member Ronald Sparrow challenged his right to traditionally fish without retaining a food fishing license.
It was argued that Sparrow retained the right to fish in the lands that the Musqueam inhabited and fished for centuries, and that their rights had never been extinguished by treaty. The Supreme Court of Canada ruled in 1990 that existing aboriginal and treaty rights were recognized and affirmed in section 35 of the Constitution Act.
An important court case that Pinder and his colleagues worked on included the Delgamuukw trial in 1987. This case was named after Gitxsan hereditary chief Earl Muldoe which involved land claims in British Columbia.
They lost the original BC Supreme Court case in 1991 when the judge ruled that the title was extinguished when the province joined Canadian Confederation.
In addition, the judge refused to accept as evidence the oral history of the former Gitxsan and Wet’suwet’en (passed down from generation to generation).
The Gitxsan and Wet’suwet’en appealed the decision, and in 1993 the BC Court of Appeal concluded that the government had a duty to consult with Indigenous peoples before starting any project that could harm indigenous rights.
The court still agreed with the original decision regarding the land title.
The Delgamuukw case was appealed by Pinder to the Supreme Court of Canada. The outcome of the 1997 decision was important because it underscored that Aboriginal title was recognized as a right under the Constitution Act. It also clarified the government’s duty to consult and affirmed the legal validity of oral history.
Pinder’s involvement in Van der Peet (1996) also resulted in the decision that Indigenous oral history is an important type of evidence that courts must treat on an equal basis with other types of evidence. .
Pinder was passionate about defending the rights of indigenous peoples. She took the initiative to plead several other landmark cases before the Supreme Court of Canada which dealt with the fiduciary obligations of the federal Crown: Guerin v La Reine (1984), Apsassin v La Reine (1995), decisions establishing the right from the Tk’emlúps Band to pre-Confederation reserve land (Jules v. Harper Ranch in 1987) and prevent CNR interference with native fisheries along the Fraser and Thompson rivers (Pasco v. CNR in 1984) ), to only cite a few.
Pinder’s two-way relationship with Indigenous leaders in British Columbia has enabled him and his colleagues to advance the rights of all Indigenous peoples in Canada.
These important court cases draw on the work of cultural anthropologists and archaeologists who, at times, act as expert witnesses in court. Subsequent legislative changes, such as consultation requirements, underpin the process of all archaeological and environmental assessments today.
Nola Markey is a cultural heritage manager and an Aboriginal anthropologist and archaeologist with the Little Shuswap Lake Band. Dig It is KTW’s regularly published column about the history beneath our feet in the region. Interested in more? Go online at republicofarchaeology.ca.