Canada Supreme Court grants native land title - this is a big deal

Editor's Commentary:
Canada has always been an odd place. It achieved independence from the British crown in 1867, by asking politely. Then it continued to govern itself for more than 100 years under the auspices of various Acts of Britain's parliament. It wasn't until 1982 that Canada actually got its very own, made in Canada, Constitution. And even that still contains some clauses that show deference to Britain.

At the time the Constitution was being drafted and debated, there was near universal agreement that it was a good idea, and a good document - except from some in Québec who felt it failed to properly recognize the significant place the former New France played in the development of Canada. That argument remains unresolved today; Québec is the only province which has never signed the Constitution.

But I can recall hearing at least a few people comment in the early 80s that we might be heading down a slippery path with this new document. Up until that point, Canada had muddled along quite nicely (unless you happened to be Aboriginal, in which case you would surely disagree that everything was fine. In my view, you would have been right to complain.) Those who were cautious about writing down this new constitution - which really contains pretty much what we were doing in practice anyway - said that once it was codified as law, then the challenges would begin. Case after case would seek to expand rights or duties, or to amend them, or to clarify them.

So when the Supreme Court of Canada ruled yesterday on the issue outlined in the article that follows, there were those who: were dismayed at the 'selling of Canada' to a 'bunch of natives'; decried that this would mean the end of development and, therefore, a weakened economy; and, those who cheered loudly that it was about bloody time Aboriginals attained what should rightly have been theirs all along.

But nothing that was granted by the SCC yesterday is new; the Constitution already provided for exactly what is stated in this ruling. It's just taken more than 30 years for somebody to finally put a stop to wrangling over it.

Many non-Aboriginals in Canada (who will swear on their mother's graves that they are not racist) say the natives in this country get special treatment. Well, the treatment they get is different. And they have been singled out for special rights because they were, for so long, singled out for special wrongs.

Finally, this SCC ruling makes this clear to the government and all future governments: You signed treaties and contracts with these people over the years, and by god you're going to live up to your word. This ruling means that no longer can governments give lip service to Aboriginals and then pretend they have 'consulted'. Now, they know they will need 'consent' from those Aboriginals - and THAT is why this is a big deal.

One more point: This is one more defeat for the government of Stephen Harper. He has suffered a long string of defeats at the Supreme Court of Canada over the past two years. It's a stunning record of rebuke from Canada's highest court. At some point, it's to be hoped voters will realize this isn't because of failures by the Court, but rather failures by Harper. And maybe then they'll graciously return the SOB to the private sector.

It is to be hoped that other jurisdictions around the world sit up and take notice of the SCC ruling - the lawyers certainly will.

- prh, Editor
Axis of Logic

The Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land.

The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.

'It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.'

— Grand Chief Stewart Phillip,
president of Union of B.C. Indian Chiefs

The case focused on the Tsilhqot'in First Nation's claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.

A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area.

The Supreme Court of Canada has recognized the Tsilhqot'in First Nation's aboriginal title over a wide area to the south and west of B.C.'s Williams Lake, which it considers its traditional territory. (CBC

The Tsilhqot'in, a collection of six aboriginal bands that include about 3,000 people, argued the court's decision failed to recognize the way its people had lived for centuries.

The court heard the Tsilhqot'in people were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

Establishes meaning of title
In its decision, Canada's top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

The Supreme Court of Canada has recognized the Tsilhqot'in First Nation's aboriginal title over a wide area to the south and west of B.C.'s Williams Lake, which it considers its traditional territory. (CBC)

The court also established what title means, including the right to the benefits associated with the land and the right to use it, enjoy it and profit from it.

However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:

Economic development on land where title is established has the consent of the First Nation.
Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.

In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.

The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.

'Absolutely electrifying'
Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying."

"We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News.

"It only took 150 years, but we look forward to a much brighter future. This, without question, will establish a solid platform for genuine reconciliation to take place in British Columbia.

"I didn't think it would be so definitive," Phillip added. "I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment."

Future pipelines?
Aboriginal Affairs Minister Bernard Valcourt said in a statement Thursday that the government will review the "complex and significant issues" in the decision.

"Our government believes that the best way to resolve outstanding aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians," Valcourt said in the statement, adding that the government has concluded four treaties in B.C. since 2006, with others under negotiation.

NDP critic Jean Crowder welcomed the ruling and said the governments at both levels have for too long taken the chance that aboriginal title would never be recognized in going ahead with development.

"Now, all levels of government will need to stop and consider whether or not they've met the duty to consult or justified an infringement. Governments will have to meet this obligation so development can continue, with First Nations determining how to use the land, not third-parties, to the benefit of many Canadians," Crowder said in a statement.

Liberal Leader Justin Trudeau said in a post on Twitter, "We remain committed to partnering with aboriginal communities, based on inherent & treaty rights, to build a better future for all Canadians."

B.C. Attorney General and Justice Minister Suzanne Anton said today's decision "provides additional certainty around processes and tests that are applied to the relationship between the province and aboriginal peoples."

What today's ruling will mean for future pipelines is unclear, but one expert said it's likely this decision will be used by First Nations fighting the Enbridge pipeline in court.

"The pipeline is going through many, many First Nations who have already declared that they do not want the Enbridge pipeline going through their territories, and this decision strengthens their rights to preserve their traditional territories," said Antonia Mills, a First Nations studies professor at the University of Northern B.C.

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