Resource development companies and First Nations, as well as the B.C. and federal governments, are awaiting what could be a pivotal Supreme Court of Canada ruling this morning.
The court is expected to release its ruling in what has been called the Chief Roger William case or the Tsilhqot'in case. This legal action has gone through the nation's courts for almost exactly 25 years, stemming from a local First Nation attempting to block a logging operation from happening in a place they didn't approve of west of Williams Lake and south of Prince George in 1989.
As the positions took legal shape, the case became an argument over whether or not any First Nations have the decisive voice in what happened on their land.
"It is going to be a monumental decision, one way or another," said Terry Teegee, tribal chief of the Carrier Sekani Tribal Council, a collection of B.C. Central Interior nations on whose territory much of the province's proposed industry would be.
"If it is favourable for the Tsilhqot'in, it affects everything - all the development in this province and really this country, especially matters like Northern Gateway," said Teegee. "From a First Nations perspective at the community level, what is in question is how much decision-making power over development do First Nations really have? This case came out of a forestry dispute, but the issue pertains to mining, pipelines, everything. It leaves the province and federal government to look at how this court decision defines title and rights and how to take concrete actions to appease that. The next step is, how do the federal and provincial governments live up to that decision, whatever it is."
B.C.'s Ministry of Aboriginal Relations and Reconciliation declined to provide comment on the pending court case. However, only a few days ago, on National Aboriginal Day, Minister John Rustad said one of his priorities was establishing partnerships with First Nations on revenue-sharing and mutual agreements for industrial activities on untreatied lands, which is the majority of the provincial land base.
Rustad said aboriginal communities played "a fundamental role...in our socio-economic structure" and how "imperative it is to close the gaps that exist between aboriginal and non-aboriginal people in our society. We are laying a strong foundation to address these gaps by cultivating healthy relationships based on mutual trust, understanding and reconciliation."
Russell Myers Ross, chief of the Yunesit'in First Nation, is a cousin of the late Chief Roger William. He cautioned mainstream Canadians to understand that the court case was merely an attempt to have mainstream society come to its own terms over what his people are certain of: they are the only holders of human power over their territory. The Supreme Court of Canada is where he hoped that historic fact would finally be enshrined in the laws Canadians governed themselves by.
"We are waiting in anticipation," he said. "We feel confident of a declaration by the Supreme Court of aboriginal title being awarded, similar to what was achieved in 2007 in our earlier court ruling on this matter. We are striving, as chief Roger William did, to protect the values we want to live by and welcome the industrial development we choose for our community, and it is an honour to carry that forward. We look to the Supreme Court of Canada to establish a remedy among Canadians, and that decision would have implications all across Canada. But if the decision goes awry we aren't giving up anything. This is an opportunity for Canada to follow its own laws."
First Nations Summit representative Ed John, a lawyer, former provincial cabinet minister and a hereditary chief of the Tl'azt'en Nation north of Fort St. James, said this was the latest ruling in a series of Canadian court decisions that have progressively reformed the 1846 declaration by the colonial government of the day that they were the supreme rulers of the regions of British Columbia. It has been established in subsequent decisions that forgetting to involve the original and abiding residents of that territory was a legal violation.
John's dissertation on this series of events can be found in its entirety on the Prince George Citizen website.
First Nations Summit anxiously awaits Supreme Court of Canada decision in Tsilhqot'in Case
By Ed John
After two previous significant cases, the Nisga'a case in 1973 and the Delgamuukw/Gisdaywa
case in 1997, we hope the Supreme Court of Canada (SCC) will finally deliver a decision
(scheduled to be released by the SCC on Thursday June 26th) on the existence, nature and
scope of "aboriginal title" in British Columbia.
It was back in 1846 that the British Crown asserted sovereignty in what is now called British
Columbia (BC) and on February 14, 1859 that the British colonial governor issued a
"proclamation" declaring "all lands in British Columbia, and the mines and minerals therein,
belong to the Crown in fee...". There were no notices to, agreements with nor compensation to
the "Indian Nations" for this Crown taking.
When BC joined confederation in 1871 all matters relating to "Indians and lands reserved for
Indians" fell under federal jurisdiction and all lands stayed with the new province. The federal
government, aside from collaborating with the province to establish some small parcels of lands
as "Indian reserves", was largely adversarial. It exercised its constitutional authority to subjugate
Indian Tribes, outlawed their traditional cultural practices such as the potlatch and sun-dances,
criminalizing those who practised them, and callously took their children to church-run
residential schools ostensibly to 'civilize' and 'Christianise' them.
Notwithstanding this, Indian Tribes continued to pursue the "Indian land question" through the
legal system. However, in the mid-1920s the federal government made this illegal, prohibiting
Indians from retaining lawyers.
By post-WWII this began to change. Indians had enlisted in the war effort in numbers
disproportionate to their population size. Genocidal human rights violations against Jews in
Germany's holocaust gave rise to concerns of other human rights violations in other States,
including Canada. As a result, Indians were granted the right to vote in provincial elections in
1949 and federally in 1962. The prohibitions relating to traditional cultural practices and the
pursuit of the land question were repealed in the mid-1950s. Sadly however, Indian residential
schools abuses began to percolate to the public and would later be recognized as "cultural
genocide".
It wasn't until the late 1960s when the first land rights case, pursued by the Nisga'a, went to
court. The BC government denied them a "fiat", a requirement in those days to commence
litigation against the Crown. In the SCC decision, six of the seven Justices were divided 3-3 on
whether the "Indian title" of the Nisga'a was extinguished. The seventh justice ruled on a
technicality - no fiat, no justice!
Then, in 1982, following a major fight by aboriginal peoples for inclusion, Canada's repatriated
constitution "recognized and affirmed" aboriginal and treaty rights. Four first ministers'
conferences, convened from 1983 to 1987 to resolve the substance and scope of the meaning
of these rights, failed miserably.
Shortly afterwards, the Gitxsan and Wet'suwet'en Hereditary Chiefs commenced litigation
regarding the legal rights to their territories. This case, Delgamuukw/Gisdaywa, made its way
through the legal system, eventually being appealed to the SCC. The Chiefs spent close to
$25M, money which they could ill afford. In its decision the court confirmed that "aboriginal
rights" in Section 35 included "aboriginal title" to land, that BC had no authority to extinguish it,
that it was a legal interest in land over which the collective First Nations could make decisions
and that it had an "economic component" and sent it back to trial! But given the prohibitive cost
the Chiefs never did go back to trial.
That brings us to this case. The Tsilhqot'in people, fighting forest development in their territory,
filed a court case based on the existence of "aboriginal title" to their entire traditional territory.
The trial judge for the most part, agreed. The BC Court of Appeal however, decided the
Tsilhqot'in had aboriginal title only to 'small spots' in their territory including fishing rocks, trails,
village sites and, curiously, buffalo jumps in an area where no buffalo exist. That decision
brought BC back to the colonial era again. It was a horrendous outcome.
The Tsilhqot'in appealed to the SCC and were supported by intervening First Nations and
human rights organizations. BC's Attorney General also appealed, supported by the federal
government, various provinces, the BC Business Council and industry groups. The province,
abetted by a distant and hostile federal government, had no onus to prove the legitimacy of
Crown title. The battle lines have been drawn.
Do the Tsilhqot'in, the original peoples of the land and who were put to an onerous burden of
proof, have aboriginal title to their traditional territories? Once again, it is First Nations against
Crown governments and big business. It is an epic battle between socially/economically
marginalized peoples who have been wrongfully dispossessed of their lands and a province and
country which benefits immensely from the use of Tsilhqot'in lands. Ultimately it is a struggle
over the land - who decides how it is used and who benefits.
It has been 168 years since the assertion of Crown sovereignty in BC. On Thursday the eight
Justices of the SCC will decide whether there will be any measure of justice for the Tsilhqot'in
and BC First Nations. We can only hope this time they get it right. We need a summer of
contentment.
First Nations Summit Political Executive
June 25, 2014
