There was a time when governments just did what they wanted and First Nations had to live with it. It is the 100th anniversary of the forced relocation of the Lheidli T'enneh people out of South Fort George. Fifty years ago, the Quebec government decided aboriginal residents in northern Quebec should leave their traditional territory so it could be flooded as part of a massive hydroelectric dam development.
Those days have been gone for many years but they officially came to an end Thursday. The unanimous decision by Canada's highest court has two major implications. First, it makes it easier for First Nations to establish their title over lands used for hunting, fishing and cultural activities. Second, it calls for consent of First Nations before economic development can go ahead on lands where their title has been established.
The court was careful, however, to set limits to First Nation power. Without consent, the government can still approve a project by demonstrating an urgent need for the development to go ahead.
In other words, the top court set out the path for future legal challenges with its current ruling.
From the government's perspective, it can sue First Nations and demand aboriginal groups present historical evidence to justify land title. Is 100 years enough or does it need to be 200 or 300 years? A future judge in a future case will decide that.
From the perspective of First Nations, they will sue governments and resource development companies, demanding they show that their urgent need warrants supersedes their opposition. How much need is urgent and how much consent is enough? A future judge in a future case will decide the limits of First Nations consent and the urgent needs of government.
Put another way, could the federal government make the case that Canada has an urgent need to see the Northern Gateway pipeline built because it allows raw bitumen from the Alberta oil sands to get to markets other than the United States?
Could individual members of a First Nation sue their chief and council for granting consent to a project? Could a neighbouring First Nation sue another First Nation and the government because consent wasn't sought from all stakeholders, not just the ones directly affected? Could government argue that this case has no precedent value elsewhere in B.C. and Canada and only speaks to the specific conditions of this case alone?
And on it goes, all on billable hours, of course.
Thursday's decision seems to provide some clarity on the legitimacy of First Nations land title but all it really does is leave many more questions - all of which will have to be addressed in court - unanswered.
What this decision does demonstrate is the continued unwillingness of the provincial and federal governments to further the discussion on First Nations relations. Although former premier Gordon Campbell made treaties a priority, he soon realized that many B.C. First Nations don't want a treaty because that could set limits on future legal benefits. Since Canadian courts have become increasingly receptive to cases like the one brought forward by the Tsilhqot'in First Nation near Williams Lake, there seems little incentive to any formal binding agreement.
The federal and provincial governments are also unwilling to lead on the legislative front. Both governments have passed bills into law knowing they would be challenged in court but they did so to take control of the agenda and to establish their power on the issue at hand.
With that in mind, it's time government at both levels, working together or not, and with or without the blessing of First Nations, passed laws setting out government's specific powers to approve resource development, to accommodate First Nations concerns and to make a final decision when agreement is not possible.
The legitimacy of those laws would be challenged themselves but at least politicians would be setting policy and governing the people (which is what they are elected to do), rather than sitting idly by and waiting for the judges and the lawyers (who are not elected) to set the laws that will govern the conduct of Canadians.
The courts have had enough to say for now on aboriginal affairs in Canada. It's time for elected leaders, in Ottawa and Victoria and in band offices across the province to set the agenda, instead of their lawyers.
