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Panel explores new reality of aboriginal title

When the Tsilhqot'in First Nation won their Supreme Court of Canada case on June 26, winning ultimate legal endorsement of their claims over their traditional territory, it set a precedent for all of Canada.
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Paul Michel, Director First Nations Centre UNBC explains the Tsilhqot'in supreme court decision at a panel discussion at CNC Wednesday.

When the Tsilhqot'in First Nation won their Supreme Court of Canada case on June 26, winning ultimate legal endorsement of their claims over their traditional territory, it set a precedent for all of Canada.

A panel of local aboriginal leaders gathered at the College of New Caledonia (partnered with UNBC) on Wednesday to explain the ramifications to the public.

Their collective message: Canada is dead. Long live Canada.

"Change is difficult. It's not easy. But this will build a better place to live," said Terry Teegee, tribal chief of the Carrier Sekani Tribal Council (a collection of interrelated First Nations in the area). "On June 26, a political and in many ways societal earthquake happened. This is the most significant case we have ever seen in Canada."

He didn't refer to just aboriginal peoples' cases, he meant in all of Canadian legal history. The outcome of the case, according to initial interpretations, is that the Tsilhqot'in and by legal extension all First Nations of Canada, has an enshrined right to veto any and all land-use activities within its traditional territories. There are some exceptions to that, but only in limited circumstances.

If you think that means First Nations are about to kick out everyone connected to Canadian colonization, implied Lhiedli T'enneh First Nation (Prince George's encompassing titleholders) chief Dominick Frederick, you needn't worry. But if you want to cut down trees or dig up minerals, lay a pipeline or build a subdivision, the days of freely taking value from aboriginal territory were over, effective immediately.

"We aren't radical people [but other levels of government and industrial companies] can no longer come onto our territory without our invitation. We will make sure of it," Frederick said. "We welcome people to Lheidli territory but now you have to deal with us on a proper basis. We will work with industry, with governments, with our neighbours - so we can live together and work together. As one."

Teegee laughed cynically about the old falsity that First Nations people got things for free from the Canadian/provincial government. He and Frederick explained that even federally assigned reserve lands were bound by bureaucratic rules preventing a First Nation from deciding for itself what was to happen in their figurative front yard. Now this court case established their unassailable rights to the front yard, the back yard, and the whole proverbial back 40 - as First Nations had always asserted.

You see, they took turns explaining, prior to this court victory, if a tree was cut from a Lheidli forest, the provincial government charged stumpage money, the federal and provincial governments got tax money, even municipalities got payments for that harvested tree. But the First Nation of record received nothing.

This had been protested at every turn, the panelists explained. Colonizers were here originally as guests of First Nations, and business deals were struck to help one another out (furs or guiding services in exchange for supplies and services, etc.).

The relationship only soured when too many of these visitors were making unilateral decisions over the land and forgetting their place in the business deal. Very little First Nations land was ever lost in a war, very little was fairly dealt away in business transactions. Hence, the 100-plus court actions finished or in progress, one of which was the Tsilhqot'in case that needed 25 years to reach the Supreme Court.

Not only was land-use about to change, the panelists agreed, but so too was the entire forestry stumpage system, the licensing system for petroleum and mines, the protocols for allowing any company to do work on the land, etc.

The BC Forest Act, said Teegee (a registered professional forester by profession), was probably now to be considered one of many illegal documents the province of B.C. got rich off of over the last 100-plus years but was now effectively quashed by the ripple-effects of the Tsilhqot'in case.

Paul Michel, a professor and head of the UNBC First Nations Department, said none of this was at the ultimate expense of the Canadian nationality. "I'm a proud Canadian," he said, on top of his Secwepmc-Shuswap First Nation heritage. He implied that this case would surely trigger profound change in some sectors but was only going to strengthen the nation's overall fabric, since decisions would now be based on local truths rather than what amounted to institutionalized fraud and theft.

"June 26, 2014 just changed the landscape," he said. "[The federal government] has had a hard time in court giving a plausible answer as to how the Crown believes it has rights over unceded lands."

Lawyer and local leader Mavis Erickson agreed that people might have to reconsider old beliefs about aboriginal people - as would indigenous people themselves - but those were beliefs imposed by colonizers, not organically valid.

"Lawyers are taught you don't show much emotion over court cases, but I was close to crying [on June 26]," she said. "A new day has dawned. Something our ancestors fought for - to be proud of your heritage, to be connected to your lands - was sometimes hard to believe. But the Supreme Court has now agreed with our ancestors that these places are ours."

By the highest colonial institution finally coming to this determination might take some of the chains off of the founding cultures of this land, Erickson suggested, but it also breaks down some of the walls for aboriginal people to also feel proud of Canada since it was less of an oppressor now than on June 25. The court case's secondary message, she said, was, "It's OK to participate in a country that values multiculturalism."

Although that work is hardly finished. Still more clarity is expected via the courts on other cases currently in process. The other levels of government now need to figure out how they are going to change legislation and general habits to become Tsilhqot'in-compliant. The overarching legislation the federal government works by, the Indian Act, is itself now in the crosshairs of aboriginal lawyers. It is possible that the B.C. Treaty Process is now dead in the water because, as Teegee said, "when the Supreme Court has just established that you have title to your whole traditional territory, why would you negotiate away your bargaining power and take part in a process trying to relegate you to four or five per cent of your territory?"

In its place, he said, would likely be sets of shorter-term agreements over who gets to do what on any given First Nation's land, and how much the local First Nation would share the revenues with the other levels of government.

"It is a huge responsibility to represent the animals, the plants, the fish, because they can't speak for themselves," said panelist Marlene Erickson. "We work hard to ensure there are resources there for children and grandchildren. [This court victory] is the culmination of a lot of dedicated, principled work by our parents, grandparents and ancestors, and we cannot do less for our children and grandchildren."

"Liquidating our resources is not in the cards," said Teegee. "The corporate agenda has been given back to the people." But to resource companies, he said the door to business is not closed, it is just a different entry point. "You know the rules of the game, now. You can come to us."

Frederick said he had heard the colonial complaint all his life, asking why the Indian kept complaining about them being on "our" land.

"Now you have your answer. Because it was always our land, and we knew it. Because we were here all along and you came later," he said, not as a lament but as legal fact. "How are you going to prove your jurisdiction prior to your arrival here? You can't. If you try to go to court now, you'll lose."

Teegee said aboriginal people had seen this day coming for a long time, and it wasn't a victory that meant domination had shifted, only rights acknowledged. There was still Crown oppression on the federal and provincial books, but this was a big step towards reconciliation.

"Chief Dan George, one of our greatest aboriginal leaders, said it would be a new Canada when we take the tools of the colonizer and the tools of our own culture, and put them together to make us all stronger," said Teegee. "I think that's what's happened with this case."