You may have read on Thursday morning that the Supreme Court of Canada made an historic decision. The Court ruled that the Tsilhqot'in First Nations does, in fact, have title to 1,700 square kilometres of land south and west of Williams Lake. For First Nations communities in British Columbia this ruling is likely to be a game changer. You might recall that last week I wrote about the absence of fanfare when the federal government announced its approval of the Northern Gateway project. I said then that First Nations have two strong roles in public policy decisions: one as a legal force and one as a social force. This ruling has strengthened the legal role and has the potential to alter the political landscape in British Columbia.
First, let me explain the ruling. The Supreme Court is charged with upholding the law of the land. They decide on the nature of the relationship among the state (the government), the individual and the society. All of these "players" are subject to rules laid out in the constitution. We call these rules the "rule of law." In democratic countries the "rule of law" trumps the "sovereign power." Sovereignty is outlined in the constitution and much of our legal history has to do with "sorting out" who is responsible for particular areas of jurisdiction even though they are enumerated. I said last week that one area that is missing from the Constitution is the environment. It does not appear as a separate area of jurisdiction and even though the federal government has power for those areas not enumerated it seems that the Court has been reluctant to give them full sovereignty over the environment because the provinces are responsible for "natural resources" which thoroughly complicates the meaning of "the environment."
In the case of the Tsilhqot'in decision the Supreme Court was upholding the rule of law set out in, among other laws, section 35 of the Constitution Act, 1982. In 1982, Canada patriated the Constitution which means that we brought it home to Canada from Britain. The Constitution was drafted using the Constitution Act 1867 (the old BNA Act) with a number of important amendments including amending formulas, an extension of powers over natural resources to the provinces, the Charter of Rights and Freedoms and, the key change applicable to this court ruling, Section 35 Aboriginal Rights and Title.
It reads:
"35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons."
The Court ruled that the Tsilhqot'in do have title to the land in question and that their rights under Section 35 are not overridden by the Forest Act legislation that refers to "Crown timber." The government has an obligation to consult about resource extraction on the traditional territory of the Tsilhqot"in.
It is critical to understand that the 1982 Constitutional provision for aboriginal rights and title is grounded in our history. Section 35 was added to the Constitution because it upheld a principle of the relationship between aboriginal peoples and the Crown that was established long before Canada became a country. The Royal Proclamation of 1763 recognized that aboriginal peoples were here long before the colonists and that the Crown provided them with assurance that their existing land rights would be recognized. However, the Proclamation was not invalidated by the actions of the Crown. The Supreme Court made this assertion a long time ago in other cases involving Aboriginal title. My point is that the question of title precedes the founding of our country.
This case has the potential to change the nature of our politics because British Columbia has generally failed to settle treaty claims through its own treaty process. In this case the Supreme Court found the land claim to be valid and thus applied section 35. They have no other choice: it is the "rule of law."
