First Nations leaders are declaring victory today (June 26) in response to a Supreme Court of Canada ruling on aboriginal land title.
In a telephone interview, Grand Chief Stewart Phillip described the judges’ unanimous decision as “an absolute game changer”. He noted it could have “enormous” implications for resource projects proposed for B.C., including Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline, as well as natural gas terminals and pipelines encouraged by the government of Premier Christy Clark.
“The [Supreme Court’s] decision represents the unfinished business of Confederation from some 143 years ago,” said Stewart, president of the Union of B.C. Indian Chiefs. “The notion of terra nullius was laid to rest, and now we are moving into an entirely new legal landscape that goes beyond mere consultation, and moves on toward the matter of consent, vis-à-vis, large-scale resource development projects."
“Canada, British Columbia, and industry have been very cavalier and dismissive of their legal obligations, in terms of acknowledging the full measure of our aboriginal title rights interest," he continued. "After today, I would suggest that they are not going to be able to simply skirt by those obligations as they have in the past.”
The court’s decision in a case brought forward by the Tsilhqot'in First Nation settles longstanding questions about what land aboriginal groups can claim as theirs, and whether First Nations' claims to lands they’ve inhabited for centuries apply to small areas (such as specific fishing sites) or to large swaths of territory. The judges decided in favour of the latter interpretation, finding that aboriginal title should be recognized for the entire area at issue.
Specifically, the case concerned a claim of title brought forward by the Tsilhqot'in First Nation over 440,000 hectares of land located several hundred kilometres north of Whistler.
In 2012, the B.C. Court of Appeal found the Tsilhqot'in First Nation had legitimate claim to that land and rights to hunt, trap, and trade there. However, in that decision, judges ruled those findings only applied to relatively small areas where Tsilhqot'in people were identified as having lived and been active hunting and trading. The Tsilhqot'in appealed that decision, arguing that as a semi-nomadic people, their claim should apply to all of the larger territory in question.
Today’s Supreme Court of Canada ruling agrees with the Tsilhqot'in’s argument.
“I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in,” wrote Chief Justice Beverley McLachlin. “I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations.
In a media release, Chief Roger Williams, who, on behalf of the Xeni Gwet'in First Nation was named as the appellant in the case, described the day as a time to "celebrate a new relationship with Canada".
"First and foremost we need to say sechanalyagh [thank you] to our Tsilhqot’in Elders, many of whom testified courageously in the courts," he said, quoted in the release. "We are completing this journey for them and our youth. Our strength comes from those who surround us, those who celebrate with us, those who drum with us."
Chief Joe Alphonse, tribal chair of the Tsilhqot’in National Government was quoted there saying the court's decision confirmed that the land in question belonged to his people.
"This is the end of denying rights and title," he said. "This decision will bring much needed certainty for First Nations, government and industry. This case is about us regaining our independence—to be able to govern our own Nation and rely on the natural resources of our land. We are ready to move forward in this new relationship with government and industry. That work starts today.”
The decision could have significant implications for how governments and corporations interact with First Nations groups on issues such as energy development projects and resource extraction.
In addition to clarifying how land claims should be interpreted geographically, the Supreme Court’s decision also establishes how government and industry should proceed with economic developments on land recognized as First Nations’.
On land where aboriginal title is established, organizations proposing developments much have the consent of the First Nation in question. Alternatively, development can proceed without consent if the project is deemed “justified by a compelling and substantial public purpose”.
In a June 26 media release, the B.C. government praised the court’s decision for providing clarity on issues concerning the land of First Nations peoples.
“The decision provides additional certainty around processes and tests that are applied to the relationship between the Province and Aboriginal peoples,” said Attorney General and Minister of Justice Suzanne Anton in the release. “We believe this is the right approach as it enables First Nations to fully participate in economic development and brings benefits more quickly to Aboriginal communities.”
A statement posted on the website of Canada's Ministry of Aboriginal Affairs and Northern Development states that Ottawa is reviewing the court's decision.
"Our Government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians," it reads.
Phillip emphasized what implications the ruling could have for oil and gas projects proposed for B.C.
“The impact this has on Enbridge’s Northern Gateway pipeline proposal is enormous, as it is to the Kinder Morgan Trans Mountain pipeline proposal,” he said. “Within the Joint Review Panel process, there was an obligation to address the issue of aboriginal title and rights interest, and the question now is, was that done adequately? And we know the answer is no, it wasn’t.”
Phillip recounted the reactions of First Nations leaders upon learning of the news.
He said that all of the Tsilhqot’in chiefs, including Williams, had gathered at the headquarters of the Union of B.C. Indian Chiefs before 6:30 a.m. this morning.
“And when it happened, when the decision was published at 6:45 Pacific Standard Time, and we became aware of the essence of the decision, the boardroom erupted into cheers and tears,” he continued. “It was an incredible moment.”
According Phillip, the Supreme Court’s decision will forever change Canadian governments’ relationships with First Nations peoples.
“This provides a platform to begin a genuine, meaningful dialogue in British Columbia vis-à-vis reconciliation of First Nations’ and Crown title interests,” Phillip continued. “I’m hoping that both Canada and British Columbia acknowledge that this is an opportunity and that they are now willing to come to the table and discuss a different approach to reconciling our interests.”