First Nation wins historic land ruling
William decision will be historic first
The Supreme Court of Canada has, for the first time, recognized a First Nation’s title to a specific tract of land — a historic decision for B.C.’s Tsilhqot’in nation with major implications across the country wherever there are unresolved land claims.
OTTAWA — The legal ground shifted under the feet of startled Canadian First Nations leaders and the government and industry officials they deal with after a landmark Supreme Court of Canada decision Thursday.
Canada’s highest court, for the first time in the country’s history, granted title to a vast piece of B.C. land to a First Nation.
The ruling over 1,750 square kilometres of rugged and mostly undeveloped property largely accepted the broad interpretation of what title means — as laid out by the late Justice David Vickers in a 2007 B.C. Supreme Court decision — and completely rejected the far more narrow view delivered by the B.C. Court of Appeal in 2012.
Thursday’s decision, with profound implications on everything from the Northern Gateway oilsands pipeline proposal to the molasses-slow B.C. treaty process, was described as a “gamechanger” in the power dynamic between aboriginal Canadians and the Crown.
“We are in an entirely different ball game,” declared Grand Chief Stewart Phillip, president of the Union of B.C. Indian chiefs.
In a unanimous ruling that surprised many legal experts, Chief Justice Beverley McLachlin found that all the territory in question should fall under the ownership of the Tsilhqot’in First Nation of the central B.C. Interior.
The granting of Aboriginal title, she wrote, “confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses.”
The right is subject to a requirement that land use must be consistent with the needs and interests not only of current but also future generations.
It also said government can infringe on that right — to bring in, say, a major resource development project — if it can prove there is a “compelling and substantive” public need and that the action is consistent with the Crown’s “fiduciary duty” to the First Nation in question.
First Nations leaders, who awaited the ruling in a downtown Vancouver office, reacted with “shock, surprise and jubilation” after learning the court had granted the Tsilhqot’in First Nation full ownership to the area in dispute, according to Jody Wilson-Raybould, B.C. regional chief of the Assembly of First Nations.
After the applause died down, hugs were exchanged and teary cheeks were dabbed with tissues, First Nations leaders — armed with more clout than they or their ancestors ever had — declared at a lengthy news conference that they are ready to finally reconcile with the rest of Canada.
Wilson-Raybould called the decision a game-changer and urged Prime Minister Stephen Harper and B.C. Premier Christy Clark to respond accordingly by seriously negotiating land claims.
She also noted that many First Nations along the proposed Enbridge Northern Gateway route have strong title claims. So with the court declaring that title can include large territories rather than specific little postage-stamp plots of land, the door is open to some First Nations being in a position to stop the Calgary company in its tracks.
Enbridge is “probably back on its heels” as a result of the decision, Phillip said.
Two experts agreed that the project, deeply opposed by most B.C. First Nations, is in trouble.
“If Northern Gateway still wishes to proceed with this application — and I think they may rethink it at this point — then I think this decision has given some very strong leverage to First Nations to hold the application up in court for many years to come,” said University of Victoria law professor Chris Tollefson.
University of B.C. law professor Gordon Christie cited a passage in the ruling that could have ominous implications for Northern Gateway.
It said if a claim is “particularly strong” the Crown must take action to preserve the Aboriginal interest in the land even if a legal decision hasn’t been rendered.
The federal government reacted cautiously to Thursday’s decision.
“The decision by the Supreme Court of Canada on the appeal filed in the Roger William case involves complex and significant legal issues concerning the nature of Aboriginal title in the Province of British Columbia,” Aboriginal Affairs Minister Bernard Valcourt said in a statement.
He noted that since 2006 four treaties have been con- cluded in B.C., while others are at advanced stages of negotiations.
“Our gover nment believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians.”
“We are committed to continuing this progress and ensuring an effective process for negotiating treaties.”
B.C. business groups took a similar stand.