Chief Roger Williams (in red), with fellow Chiefs of the Tsilhqot'in First Nation. Image via YouTube.
The most important court case over aboriginal rights in Canada’s history ended with a landmark decision handed down Thursday by the Supreme Court of Canada, which granted declaration of aboriginal title to more than 1,700 square kilometres of land to the Tsilhqot’in First Nation.
The move is being lauded as a “game changer” by lawyers, chiefs, and First Nations representatives throughout Canada and was met by cheers and tears of jubilation, said Grand Chief Stewart Phillip, president of Union of British Columbia Indian Chiefs.
In addition to its significant expansion of aboriginal land title rights, the decision also has the potential to severely impact pipeline projects like the controversial Northern Gateway—which Enbridge plans to build through unsurrendered First Nation land—as well as resource-based projects from mining to forestry. It also completely changes the rules for a multitude of land negotiations still unresolved throughout the country.
The Tsilhqot’in comprise approximately 3,000 members spread out over six aboriginal bands. At issue was their claim to more than 4,000 km of land in the B.C. interior near Williams Lake.
The court battle began more than 20 years ago when the province granted approval for a logging company to commence work on Tsilhqot’in territory. Over the years, the fight has been heated both inside and outside the courtroom, and at times involved blockades.
This issue has been ongoing since the Tsilhqot’in War of 1864, “when our warrior chiefs were tried and hung,” said Tsilhqot’in Chief Roger Williams, who launched the legal challenge. “So I think of all our elders, our leaders, our past chiefs, the things that they’ve done to get us to this point… they were telling me: ‘We may have to take it to the Supreme Court of Canada to do this.’ Some elders didn’t make it to the trial.”
A gathering of prominent First Nations leaders came together Thursday in a Vancouver boardroom to wait for the decision together, Phillip said. When a lawyer in the room began to describe the essence of the ruling, the room erupted in shouts, hugs, and high-fives. It was “electric,” he said.
“It was hugely emotional. This struggle has been going on for the last 143 years. It takes us back to confederation, it takes us back to the Calder decision 40 years ago when Frank Calder, a former Nisga'a MLA took the famous Nisga’a case to the Supreme Court of Canada, and that began our long arduous journey, which was to seek a declaration of aboriginal title in the province of British Columbia,” Phillip said.
Another landmark B.C. Supreme Court decision in 2007 originally ruled that aboriginal title for the Tsilhqot’in applied to the broad expanse of their entire territory. However, in 2012 it went to the B.C. Court of Appeal and the decision was overruled, saying that the Tsilhqot’in had hunting, fishing, and trapping rights, but that it only applied to certain small areas.
“We condemned that decision on the part of the B.C. Court of Appeal as being very narrow, impoverished, and racist in nature,” Phillip said. “It described our aboriginal interests as ‘postage stamp,’ or in small spots [of intensely used land.]”
Map of the Tsilhqot'in First Nation land (highlighted in yellow), via YouTube.
Now, the Supreme Court’s latest decision completely rejects this notion, and asserts that aboriginal title in fact does apply to the broad expanse of a nation’s territory, he added.
At its essence the issue has been how to define and then prove aboriginal title, and how that title would then be exercised by the nation that possessed it.
“Every single decision for 40 years has found a technical reason not to make a decision about aboriginal title—in terms of actually declaring title,” said Douglas White, a lawyer and former chief of the Snuneymuxw First Nation who specializes in indigenous law.
“That’s been the basic pattern since the Calder decision in 1973, until 6:44 this morning. They’ve refused to issue a declaration. The Delgamuukw decision was in 1997, for god’s sake, and the courts said (to the government), ‘Go and sort this out,’” he said. “And the Crown showed up to the discussions with the most impoverished and ignorant mandates, which didn't reflect the law, which means that we’ve never been able to resolve these issues.”
This happened for a range of reasons, but was ultimately because the courts were hoping the Crown would engage in good faith negotiations and resolve the fundamental title issue. That didn’t happen, so with this ruling, the courts are now making it clear their title is real, meaningful, and has major implications for lands and resources, White said.
Now that the decision has come down from the highest court in the country, there is no room for appeal. However, the unanimous 8-0 ruling does not prohibit economic development. Though the government is now required to get consent on development from the Tsilhqot’in, it will be down to further consultation and negotiation as to how their rights can be infringed, if at all.
“I think this is it for them,” Williams said with a chuckle. “They’ve failed and now they’ve got to deal with the consequences.”
Aboriginal Affairs Minister Bernard Valcourt was not available for comment, but in a written statement to the Toronto Star he said the Conservative government believes “the best way to resolve outstanding aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians.”
As for how it will all play out, essentially “everything is now in question,” Phillip said. The decision also has huge ramifications for Kinder Morgan’s Trans-Mountain pipeline expansion.
It draws into sharp focus the fourth condition of the provincial government’s five conditions vis-à-vis Enbridge’s proposal, Phillip said, which is to ensure the legal rights and interests of First Nations are met.
“Twenty-four hours ago, that meant something entirely different than it does today. The laws have changed,” he said.
“All of it, everything they've done for 150 years that has been premised on the idea that First Nations don't matter, has now been totally smacked down,” White added. @juliehchadwick