Life after the Tsilhqot’in decision

Aboriginal title isn't land ownership in the fee-simple sense. It is defined as collective and non-transferable

Kwakiutl protest against logging

VICTORIA – The Supreme Court of Canada’s landmark decision on aboriginal title held by the Tsilhqot’in Nation leaves many questions to be answered.

Perhaps the biggest is this: Will British Columbia exist as we know it today by the end of this century? Or will it devolve into dozens of semi-autonomous regions, through treaties or similar court actions, as the only Canadian province that never completed historic treaties?

The Tsilhqot’in decision upholds the key finding of the 2007 trial, that 1,700 square kilometres of the Nemiah Valley west of Williams Lake are essentially owned by the people who occupied it hundreds if not thousands of years ago.

It’s not quite ownership. Federal and provincial jurisdiction still applies, and their authority varies with the strength of the aboriginal title claim.

Chief Justice Beverley McLachlin ruled that the province overstepped its authority by issuing logging permits in the valley in 1983. McLachlin noted that lawyers for B.C. first argued that the logging was to control mountain pine beetle, then dropped that argument in its first appeal. She also upheld the decision of the trial judge, one-time NDP leadership contender David Vickers, who rejected B.C.’s position that the economic value of the timber to the province overrode the then-vaguely defined aboriginal title.

Here’s McLachlin’s definition:

“The nature of aboriginal title is that it confers on the group that holds it the exclusive right to decide how land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.”

That’s not land ownership in the fee-simple sense of the term. It locks in communal ownership, which I and many others have argued is at the root of the poverty seen in many aboriginal communities.

Another big question: Is there any future for B.C.’s 20-year-old treaty process, or will this precedent-setting case send more First Nations to court, or to the barricades as the Tsilhqot’in did on a logging road in 1983?

One of the unique advantages that have emerged from the handful of modern treaties in B.C. is that aboriginal communities have more options in land ownership. By voluntary agreement, they can convert land to fee-simple ownership, making it available for mortgage or sale. Modern treaty holders also get out from under the federal Indian Act, which remains in force despite this latest decision.

One of the big questions asked in the days after the Tsilhqot’in decision was this: Is the Northern Gateway pipeline project dead?

None of the aboriginal communities along the pipeline route has this kind of declared aboriginal title. Few if any would have a similar strength of claim as the Tsilhqot’in, who fought a small war to defend their territory from a wave of gold seekers in the 1860s.

One that does is the Haida Nation, whose occupation of a beautiful group of islands was long defended militarily, and never challenged by any other aboriginal group.

Among others, the Haida Nation was represented in the Tsilhqot’in case as interveners. Council of the Haida Nation president Peter Lantin said after the decision that his team is preparing its own aboriginal title case for trial.

Few doubt that this assertion of title will be successful, either by negotiation or court ruling. But there is a unique aspect to the Haida claim that would set another precedent.

They claim title to the ocean around Haida Gwaii, a challenge to anyone wishing to sail tankers through.

Tom Fletcher is legislature reporter and columnist for Black Press. Twitter: @tomfletcherbc

 

Just Posted

Nathan Cullen named Parliamentarian of the Year

Skeena-Bulkley Valley MP won the top-title Nov. 5

VIDEO: Taking to the skies to protect moose in the Cariboo Chilcotin

Conservation Officer Service doubles patrols to oversee moose harvest

New Coast Guard radar boosts marine traffic monitoring off B.C. coast

Six radar installations set up for Georgia Strait to Queen Charlotte Strait to Prince Rupert

Central Coast Regional District swears in new Board of Directors

There are three new faces representing our region and two returning directors

VIDEO: Black horse signals ‘sign of peace’ for Tsilhqot’in Nation

Justin Trudeau rides black horse provided by Cooper family

Trudeau offers to help Pacific islands face climate change impact

Prime Minister Justin Trudeau met with the leaders from the Pacific island nations on Saturday during the APEC Summit in Papua New Guinea

Price makes 36 saves as Habs edge Canucks 3-2

Late goal lifts Montreal past Vancouver

BC Minister of Agriculture loses stepson to accidental overdose

Lana Popham announces death of her 23-year-old stepson, Dan Sealey

Canadian military’s template for perfect recruits outdated: Vance

Gen. Jonathan Vance, the chief of defence staff says that the military has to change because the very nature of warfare is changing, particularly when it comes to cyber-warfare

‘Toxic’ chosen as the Word of the Year by Oxford Dictionaries

Other top contenders for 2018 include ‘gaslighting’ and ‘techlash’

RCMP bust illegal B.C. cannabis lab

Marijuana may be legal but altering it using chemicals violates the Cannabis Act

Canada defeats Germany 29-10 in repechage, moves step closer to Rugby World Cup

Hong Kong needs a bonus-point win over Canada — scoring four or more tries — while denying the Canadians a bonus point

Avalanche Canada in desperate need of funding

The organization provides avalanche forecasting for an area larger than the United Kingdom

Quesnel fed up with detour, urges Ottawa to speed up road repair

West Fraser Road has been on detour since spring 2018, with no plans to repair washout until 2020

Most Read