The Supreme Court of Canada will hear a complex appeal involving a British Columbia First Nation’s claim to aboriginal title over a wide area it considers its traditional territory — a case observers say could have far-reaching effects on land claims in B.C. and across the country.
The top court issued a decision Thursday granting the Tsilhqot’in First Nation permission to appeal a ruling that rejected its claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake, B.C., in the province’s Interior.
The B.C. Appeal Court issued a ruling last year that gave the Tsilhqot’in sweeping rights to hunt, trap and trade in its traditional territory. But the Appeal Court agreed with the federal and provincial governments that the Tsilhqot’in must identify specific sites where its people once lived, rather than asserting a claim over a broad area.
The Tsilhqot’in, a collection of six aboriginal bands that together include about 3,000 people, argue 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.
Chief Joe Alphonse, tribal chairman of the Tsilhqot’in, says it would be like arguing a country’s borders only consist of areas where people physically live, while ignoring the areas in between.
“We own the broad territory,” Alphonse said in an interview Thursday. “There’s no country that’s going to define itself like that anywhere in the world, so why should that apply to First Nations people?”
The case dates back to the early 1990s, when the Tsilhqot’in first began using the courts and a blockade to stop logging operations in the area, setting off a two-decade legal odyssey that has cost tens of millions of dollars.
Alphonse said the case will answer fundamental questions about how to define and award aboriginal title — itself a complicated term that grants natives exclusive control over their traditional lands, with certain limitations.
“With land, you have the power to govern yourself,” said Alphonse. “We don’t have that right now. First Nations across Canada are watching this case.”
There have been several Supreme Court of Canada decisions that have shaped the definition of aboriginal title, how it is decided and what rights come with it.
But Prof. Sebastien Grammond, an expert in First Nations land claims at the University of Ottawa, said much of the law regarding aboriginal title remains vague.
He said the Tsilhqot’in case will determine whether the courts take into account the reality that First Nations didn’t use the land like North Americans do now.
“It would seem to me that the B.C. Court of Appeal placed the bar very high, that an aboriginal group has to be able to show something like exclusive possession, like you have to have a fence over a plot of land,” said Grammond, the school’s dean of civil law. “I think it is imposing a western concept of occupation of the land on the indigenous people. We all know that’s not how aboriginal people used to occupy the land.”
Grammond said the case will have a significant impact on treaty negotiations in B.C., which is only now negotiating treaties with its First Nations, as well as in other parts of the country where land claims disputes still persist.
“The bargaining position of the aboriginal people is, ‘Look, we have aboriginal title and you need to acknowledge it,’” he said. “If the courts say that aboriginal title doesn’t mean much, then the bargaining position of the indigenous peoples will be much weaker.”
The B.C. and federal governments are both opposing the Tsilhqot’in’s claims for aboriginal title.
British Columbia’s minister of aboriginal relations and reconciliation, Ida Chong, wasn’t available for an interview.
She said in a written statement that she prefers negotiated settlements with First Nations and believes the province has been working to build a positive relationship with the Tsilhqot’in. She noted the province and the Tsilhqot’in signed an agreement in 2009 to guide decisions on resource sharing.
“We are proud of that relationship and intend to continue working with the Tsilhqot’in under our government-to-government agreement,” the statement said.
A brief statement from Aboriginal Affairs and Northern Development Canada said only that the department would be filing a submission in court.
B.C., unlike other provinces, does not have modern-day treaties with its First Nations. The province created the B.C. Treaty Commission in 1992 to settle land claims with First Nations, but the process has been long and expensive. Some First Nations, including the Tsilhqot’in, are not participating.
Of the 60 groups currently in the process, only two have seen their treaties signed and ratified by the provincial and federal governments. Six others are nearing the final stages of the process.
The Tsilhqot’in has also been waging a court battle over a controversial mine project on its traditional territory.
The First Nation is among the strongest critics of a proposal by Taseko Mines Ltd. To develop its New Prosperity mine site near Williams Lake.
The $1.1-billion mine was approved by the B.C. government, rejected in a federal government environmental review in 2010 and is now back before the environmental review process.
In 2011, the Tsilhqot’in First Nation won an injunction to stop work on the project, but that injunction was later vacated by a court order.