Gitxsan hereditary chief was lead plaintiff in famous Supreme Court case

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As the court case that came to be known by his hereditary name was winding its way through the Canadian legal system, Earl Muldon was making a parallel case on the land.

Now known as Delgamuukw v. British Columbia, the case was launched in 1984, when a group of Gitxsan and Wet’suwet’en hereditary chiefs launched a claim to about 58,000 square kilometres of what is now northwestern B.C. and concluded in 1997 before the Supreme Court of Canada.

Over roughly the same period, between 1986 and 1996, Mr. Muldon, the named plaintiff in the case, carved eight totem poles as part of a commission from Gitxsan and Gitanyow hereditary chiefs to restore and replicate poles that had previously stood in the region.

At the time of the commission, Mr. Muldon was already an accomplished artist, with work including a carved limestone frieze in the Canadian House of Commons as part of an Indigenous sculpture program. With three other Gitxsan artists, he also designed and carved stately cedar doors for the Museum of Anthropology at the University of British Columbia. He was known as a skilled carver, jeweller and printmaker.

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But he considered the totem-pole project his most important commission and the one of which he was most proud, his family said in a written eulogy. The poles were meant to enforce territorial rights and ownership of land that had been claimed by the province of B.C. when it entered Confederation in 1871.

A ninth and final pole in the project was raised at Gitanyow in 2013. The totem pole renewal project helped preserve traditional Northwest coastal art and provided striking symbols of the concepts that were being talked about in court.

“He demonstrated his knowledge of the territory, and of the laws and of the people, through his art,” says Peter Grant, a B.C. lawyer who was part of the legal team that worked with Mr. Muldon and other plaintiffs on the case.

Mr. Muldon died in Hazelton, B.C., on Jan. 3, at the age of 85, after a lengthy illness.

He was born Peter Earl Muldoe (he later went by Muldon) in the village of Kispiox on May 16, 1936, the fourth of 13 children. His father, Peter Muldoe worked as a commercial fisherman and his mother, Lottie Muldoe, worked in canneries. Family life revolved around the land and seasonal harvesting activities: fishing and berry picking in the summer, logging and trapping in the winter.

He went to school in Kispiox until Grade 6, then attended the Alberni Indian Residential School up to Grade 10.

Located near Port Alberni on Vancouver Island, the school operated between 1900 and 1973 and is now known for deprivation and abuse. Survivors who attended the school told the Truth and Reconciliation Commission about being hungry, forbidden to speak their language and abused. Students came from Vancouver Island communities and elsewhere in the province, including as far away as Kispiox.

Mr. Muldon didn’t talk much about his time in residential school, his children say. It was only about five years ago that he shared a few recollections with his daughter Cheryl, including how he was forbidden to speak Gitxsan while he was at the residential school. He remained a fluent speaker.

In 1951, a school opened in Hazelton, allowing him to finish his schooling closer to home. He was good at sports, including the pole vault. It was there he met this future wife, Shirley Sterritt, whom he married in 1958.

Mr. Muldon worked in forestry and logging. He started to focus more on art after an injury, his son Charlie recalls. In 1969, Mr. Muldon became one of the first students at the Kitanmaax School of Northwest Coast Indian Art, which was based in Hazelton and became a focal point for Indigenous art and artists. Mr. Muldon was also a key player in developing the ‘Ksan Historical Village and Museum, located in Hazelton near the ancient village of Gitanmaax where the Bulkley and Skeena rivers meet.

By the mid-1980s, Gitxsan and Wet’suwet’en leaders had become frustrated with years of failed attempts to settle land claims with the province and headed to court.

Mr. Muldon was not the original named plaintiff. When the statement of claim was filed in 1984, the Gitxsan title of Delgamuukw was held by Albert Tait, who died in 1987. The name then passed to Ken Muldoe, Earl’s brother, who died in 1990. Family members say he died suddenly and unexpectedly, likely of a heart attack.

The name then passed to Mr. Muldon.

“He did not expect to be the Delgamuukw who would be there at the end of the court case – and all the way up to now. … The burden of taking up a leadership role in a non-hierarchical system fell on Earl,” Mr. Grant says.

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“And that was a hard thing for him to do.”

Mr. Muldon was involved in the case throughout, including a lengthy and complex trial, an appeal and finally, a hearing before the Supreme Court of Canada,

The 1997 Supreme Court of Canada decision is considered significant for several reasons, including its recognition of oral histories, which had been discounted by the trial judge in the Supreme Court of B.C.

The decision confirmed aboriginal title exists, set out a test for how it could be established and clarified when and how it could be infringed.

But because of technical legal issues, the Delgamuukw decision did not settle the question of which territories were held by the Gitxsan and Wet’suwet’en, with the court saying a new trial would be required. But the court recommended negotiation, not necessarily litigation. Chief Justice Antonio Lamer in the decision noted the case had been long and expensive, in both economic and human terms, summing up with the oft-cited line, “Let us face it, we are all here to stay.”

A new trial has never been held and negotiations have stalled. Critics say the province and Canada are flouting the Delgamuukw decision by backing Coastal GasLink, a 670-kilometre natural-gas pipeline now under construction between northeastern B.C. and Kitimat on the coast. The route crosses Wet’suwet’en traditional territory and is opposed by Wet’suwet’en hereditary chiefs.

Mr. Muldon was disappointed by the lack of progress in determining title after the legal odyssey to the Supreme Court of Canada, Mr. Grant says. (The first declaration of aboriginal title came in 2014 in Tsilhqot’in Nation v. British Columbia, a Supreme Court of Canada decision that cited Delgamuukw.)

But there has been progress on other fronts.

Val Napoleon worked with the Gitxsan in the 1980s in the leadup to the court case. That work inspired her to go to law school, where she wrote her dissertation on Gitxsan law and legal theory, and to develop an Indigenous law program at the University of Victoria.

The first batch of students in the four-year program are scheduled to graduate this spring, with joint degrees in Canadian Common Law and Indigenous Legal Orders.

Those graduates will bring new perspectives to a legal landscape in a country that is working toward reconciliation, Prof. Napoleon says, and Mr. Muldon and the other plaintiffs in Delgamuukw cleared a path.

“Those people who forged ahead when there were no precedents – when people said, ‘you can’t do this’ – they forged ahead anyway,” says Ms. Napoleon, who is a member of the Saulteau First Nation and interim dean of law at the University of Victoria.

“I think that Canada owes these people a debt of gratitude for the risks they took and the sacrifices they made.”

The federal government, the Union of B.C. Indian Chiefs, the Assembly of First Nations and other groups posted tributes to Mr. Muldon, noting his accomplishments as an artist and his connection to the Supreme Court of Canada decision.

Mr. Muldon won the B.C. Lifetime Achievement Award for Aboriginal Art in 2009 and was named an officer of the Order of Canada in 2010.

In normal circumstances his death would have prompted a large gathering in his honour, in keeping with his stature in the community and cultural traditions. With COVID-19, those plans had to be put on hold. Instead, the family held a service in Hazelton with a small group attending and others watching online.

His children described Mr. Muldon as a gentle, patient parent who was especially devoted to his grandchildren.

“The biggest thing about him was his heart, and how he shared that love and respect with just about everybody he met,” his son Charlie said.

As the court case wound on, his family adjusted to his new role and commitments.

“We just lived it alongside him – we knew how important it was for him, and we just lived alongside him and supported him through it,” his daughter Cheryl said.

In addition to his wife, Shirley, Earl Muldon leaves his children, Cheryl, Brian, Charlie and Teri, nine grandchildren, three great-grandchildren and extended family.