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VOL. 79 PART 4 JULY 2021
rights and dissent, and to using the law to advance the former and protect
The third quality, which Tom had in spades, is essential to the first two.
Listening to people who have been injured by the actions of others, and
deciding what the right response should be, are meaningless if one lacks the
resolve to act—the courage, in other words, of one’s convictions. Tom was
not afraid to stand up for what he thought was right, even if doing so risked
the loss of support or even ridicule.
I wonder whether people who have grown up in the post-Delgamuukw era
understand how novel it was for a lawyer in British Columbia in 1964 to do
what Tom did: urge a court to overturn the convictions of two Indigenous
men for illegal hunting because of a treaty that, until then, almost no non-
Indigenous persons, and certainly no lawyers, had even heard of. Urged by
the legendary Maisie Hurley to take on cases that her equally legendary
husband, Tom Hurley, could no longer carry on because he had died, Tom
complied. As he put it, Maisie was a formidable presence, and “I had no
choice in the matter.” One of the first was R. v. White and Bob, in which both
the Court of Appeal and the Supreme Court of Canada confirmed that a
treaty with the Snuneymuxw people of which the “mainstream” was
unaware was a valid legal document that, in fact, did protect their hunting
rights. At the time, nothing about Aboriginal rights or title, which were well
below the legal community’s event horizon, was being taught in law schools.
Certainly Tom had never heard them mentioned in his law student days.
This was about to change.
An even more important case on Aboriginal title, Calder v. British Columbia
(Attorney General), soon followed. When Tom asked the lead lawyer for
the province whether he would admit that the Nisga’a had inhabited their
traditional territory since time immemorial, he said he would, thus relieving
the Nisga’a of the burden of adducing evidence to prove something that
in both the Delgamuukw and the Tsilhqot’in trials decades later would take
months and months of trial time. The government made this concession
because lawyers are not supposed to oblige the other side to prove the obvious,
and because they thought the Nisga’a’s case was hopeless, so what did
it matter? This was the general opinion at the time, and no doubt when Tom
entered the barristers’ robing room in 1969 to begin the Calder trial, the
other lawyers were shaking their heads in various stages of disbelief. As
Don Rosenbloom, who was counsel with Tom on the case in the Supreme
Court, put it: “Lawyers in Vancouver were just laughing, it was just, ‘Give
me a break.’ But it turned out not to be a joke. And look where we are today.”
Tom did lose at trial and in the Court of Appeal, which unanimously dis-