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

Highlights and winners from the Binche Fishing Derby

The third annual event was a massive succes

Buy BC relaunches to keep business local

Local farmers’ markets may benefit

Province expands program to keep youth away from gang life

The Government of British Columbia is providing $1.12 million in additional funding… Continue reading

Applications for high-speed internet in rural communities being accepted

According to a news release that was issued by the Ministry of… Continue reading

France doubles up Croatia 4-2 to win World Cup

Played in Moscow Russia, latest Fifa World Cup marks the highest scoring final since 1966

VIDEO: Visual recap of Vancouver Island MusicFest

Walk Off The Earth, Passenger, Arlo Guthrie among highlights

Trudeau’s youth council divided over Trans Mountain pipeline purchase

A letter signed by 16 past and present members was made public today, asking the federal government to reverse course

Hulk Hogan reinstated into wrestling Hall of Fame

Hogan had used racial slurs caught on video when talking about his daughter sleeping with a black man

‘Lava bomb’ through roof of tour boat injures 22 in Hawaii

“An explosion occurred near the shoreline hurling hot lava rocks towards the boat and injuring several passengers”

B.C. teen meets Nicolas Cage

Filming mob movie in downtown Vernon, B.C.

Critics claim Trump “defended a tyrant”

Trump questions US intel, not Putin, on Russia 2016 meddling

B.C. MLAs choose new children’s watchdog

Jennifer Charlesworth has worked in government, social services

B.C. reporter calls out immigration photo on social media as fake news

A Vancouver reporter is calling out a British politician for spreading fake news

Hundreds of Arctic glaciers shrinking, disappearing

Out of 1,773 glaciers, 1,353 shrank significantly between 2000 and 2016

Most Read