250 ANNIVERSARY OF THE TREATIES OF NIAGARA, 1764 TH Supreme Court of Canada Rules in Tsilhqotin Case: The Day Before Treaty: First Nations Have Title of Lands -- The End of Denial;Legal Earthquake; Game-Changer
A Four Arrows Report on Significant Jurisprudence: PART ONE (more coming!) Thanks to APTN, CBC News, Sean Fine of the Globe and Mail, Peter ONeil of the Vancouver Sun, Tonda MacCharles of the Toronto Star, Miriam Katawazi of www.rabble.ca,, Randall Palmer of Reuters, Dene Moore of Canadian Press Ottawa, Ontario, 26 June 2014 The Supreme Court of Canada may not have been conscious that it delivered its end of denial legal earthquake game-changer decision in Tsilhqotin on the 148 anniversary of the th Battle of the Little Big Horn. Or that anyone thought about it being Canada Day Weekend. But nonetheless, in a historic first for Canadian law, the Supreme Court of Canada has awarded title to the Tsilhqotin people over a vast remote area in and around the Nemiah Valley west of Williams Lake in the Chilcotin region of the British Columbia interior where they have fought clear-cut logging efforts conducted with the approval of the provincial government for nearly three decades as part of a 150-year struggle. The last 20 years have been before the courts. The History of the Case The current chapter in the dispute over the Tsilhqot'in land began in 1983 when British Columbia granted Carrier Lumber Ltd a license to cut trees in part of the Nations territory. The Tsilhqotin people objected and blockaded a bridge the company was upgrading. The Tsilhqotin launched blockades, forcing the province to begin talks which went nowhere. The legal battle began in December 1989 with a filing by Xeni Gwetin. The filing was amended in 1998 to include the whole Tsilhqotin Nation. The trial finally began in 2002 and ran for 339 days. The trial judge J ustice David Vickers travelled to the claim area, heard from elders, historians and experts while also reviewing historical texts, including the diaries of Alexander Mackenzie and Simon Fraser. 1 The decision William et al v. British Columbia et al, 2004 1 BCSC 964 (CanLII), <http://canlii.ca/t/1hkgj> <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -2- an informative <e-note> by fourarrows@rogers.com 6July 2014 J ustice Vickers found that the Tsilhqotin were entitled to a declaration of Aboriginal title to about 40% of their total claimed territory. Vickers was not able to make a declaration of title on procedural grounds. He did, however, go on to consider how a declaration of title might affect forestry activities and other matters. J ustice Vickers devoted a significant portion of his reasons for judgment urging the parties to engage in the process of reconciliation outside the courtroom. Instead, the provincial government appealed his decision. The B.C. Court of Appeal then faced the case and held that the Tsilhqotin had not established title and found the nation could only claim territory were evidence existed of extensive use and occupancy. The Supreme Court eviscerated that position in its current ruling. The unanimous 8-0 decision written by Chief J ustice Beverly McLaughlin adopts a broad, expansive approach to aboriginal title, saying the Tsilhqot'in have rghts to the land, the right to use the land and the right to profit from the land. The area is to the south and west of Williams Lake in the B.C. Interior. The 81-page decision begins with clear unequivocal words, I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot'in. I further declare that British Columbia breached its duty to consult owed to the Tsilhqot'in through its land use planning and forestry authorizations." The text continued in straight-forward language. "The nature of aboriginal title is that it 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. Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right to the economic benefits of the land; and the right to pro-actively use and manage the land, said the ruling. The Supreme Court said that aboriginal title is unlike individual property ownership. The ruling said Aboriginal title came with an important restriction, that it is collective title held not only for the present generation, but for all succeeding generations. It cannot be . . . encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. The high court returned to the theme of reconciliation, and emphasized the Crowns duty to aboriginal people. At the heart of the case is the concept of aboriginal title how to prove it and how much control it would give a native group that has it. In 1997, the Supreme Court said title means a right to possession of land that goes beyond A chronology of events in the Xeni-Gwet'in court case over aboriginal title: April 18, 1990: Xeni Gwet'in Chief Roger William, on behalf of Tsilhqot'in Nation, files action in B.C. Supreme Court seeking a declaration of aboriginal title over 438,000 hectares in B.C.'s Cariboo-Chilcotin region. The case is called the "Nemiah Trapline Action." Dec. 18, 1998: William launches a second case, the "Brittany Triangle Action," over forestry activities in Tsilqhot'in territories. Nov. 18, 2002: Trial begins in B.C. Supreme Court. April 7, 2007: Trial ends. Nov. 20, 2007: B.C. Supreme Court J udge David Vickers issues his ruling. All parties Williams, the province and the federal government appeal. Nov. 15, 2010: B.C. Court of Appeal begins to hear arguments. J une 2012: Appeal Court upholds right to hunt, trap and trade in traditional territory but finds title can only be claimed in areas occupied or used intensively by the "semi-nomadic" people. J an. 2013: Supreme Court of Canada announces it will hear appeal filed by William. Nov. 7, 2013: Country's highest court hears arguments. J une 26, 2014: Supreme Court of Canada releases decision upholding aboriginal title. Copyright Times Colonist <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -3- an informative <e-note> by fourarrows@rogers.com 6July 2014 the right to hunt and fish on it. But its actual existence on a particular site had not been recognized by a court decision. It has, however, been acknowledged by historical treaties and modern land claims agreements. A Breach of Fiduciary Duty The Supreme Court found that B.C. breached its fiduciary duty to consult with the Tsilhqotin and that it had no economic justification for issuing logging permits in the claimed territory, which sparked the over-two- decade battle. The province argued that it stood to benefit economically from logging in the claimed area and also that it needed to stop the spread of a mountain pine beetle infestation. Granting rights to third parties to harvest timber on Tsilhqotin land is a serious infringement that will not lightly be justified, said the ruling. Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting, something that was not present in this case. Back in 1997, Canada's top court had ruled that aboriginal peoples were entitled to exclusive property rights as they occupied land before European powers exerted sovereignty. But legal scholars said the 1997 judgment failed to make clear what aboriginals needed to do or demonstrate before they could obtain such property rights. The judgment Thursday, which pitted the Tsilhqot'in Nation against the provincial government of B.C., offered the clarity legal experts sought. The decision was a major victory for the Tsilhqotin, expanding their rights to claim possession of ancestral lands and to control those lands for all time. The Tsilhqotin said in a prepared statement that the ruling is a step forward toward reconciliation between the government and First Nations. Resolving Aboriginal title reduces conflict, creates the opportunity for respectful relations and ends an era of denial. The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders, the court said. If the Aboriginal group does not consent to the use, the governments only recourse is to establish that the proposed incursion on the land is justified under the Constitution. Indeed most of the provinces territory is subject to similar title claims in the absence of treaties governing relations between First Nations and the Crown. Thus the decision has implications for future economic or resource development where title is held by First Nations. The high court endorsed the view of the late B.C. Supreme Court trial judge David Vickers, and said aboriginal title will flow where native groups can show their occupation of land in the sense of regular and exclusive use. The nature of Aboriginal title is that it 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, 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. The decision upset a B.C. Court of Appeal ruling in 2012 which said there was a need to search out a practical compromise that can protect aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians. The Court of Appeal agreed the Tsilhqot'in had sweeping rights to hunt, trap and trade in its traditional territory. But it also agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area. This narrow definition of aboriginal title referred to intensive presence at a particular site, such as salt licks and rocks used for fishing. The Tsilhqotin told the Supreme Court that the appeal courts narrow postage stamp definition made a mockery of aboriginal title. That approach was a blueprint for conflict and discord, not reconciliation, the Tsilhqotin said in their appeal to the Supreme Court of Canada. <e-notes> is published as a service of Four Arrows/Las Cuatro Flechas, providing communications among First Nations of the Americas since 1968. Names may be added to the distribution list on requests; names will be removed on request. Four Arrows receives no funding to provide this service. Readers are invited to send material for publication in <e-notes>. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -4- an informative <e-note> by fourarrows@rogers.com 6July 2014 The Supreme Court blasted the B.C. Court of Appeal , finding its definition of occupancy was too narrow. There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the court of appeal held, said the ruling. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is sufficient use to ground Aboriginal title. The high court said that Aboriginal title could be declared over territory over which the group exercised effective control at the time of assertion of European sovereignty. The Tsilhqot'in, a collection of six communities that include about 3,000 people, argued the court's decision failed to recognize the way its people had lived for centuries. They had few permanent encampments, even though they saw the area as their own and protected it from outsiders. The ruling is a win for Roger William, the chief who in the name of his Xeni Gwetin First Nation Government launched the current title claim. The rest of the bands joined his bid to expand the Tsilhqotin title over a large tract of land, approximately 4,380 square kilometres. The area is not subject to any competing claim by another First Nations group, as is the case in many regions of B.C. where there are overlapping and competing claims. The Supreme Court agreed that a First Nation can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering 1) occupation; 2) continuity of habitation on the land; 3) exclusivity in area. The court also established what title means, including the right to the benefits associated with the land, and the right to use it, enjoy it and profit from it. Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crowns procedural duty to consult, said the ruling. And must also be justified on the basis of a compelling and substantial public interest and must be consistent with the Crowns fiduciary duty to the Aboriginal group. The court declared that where title is asserted but has not yet been established, the government needs to consult in good faith with the aboriginal group in question and accommodate it where appropriate. Once aboriginal title is established, economic development can proceed as long as it has the consent of the First Nation. Failing that, the government must meet a proportionality test: it must show a law is necessary to achieve a pressing, substantial, and important public purpose. Even then, it must go no further than necessary to achieve that specific goal and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest. We meant war, not murder (Thanks to APTN National News for this information) The Tsilhotin defence of their territory began with settlement. It has not always been conducted through the courts. During a press conference in Vancouver, some of the Tsilhqotin leaders referred to the 1864 Chilcotin War that ended in the death of at least 19 European settlers and the hanging of six Tsilhqotin chiefs. Back then they faced a planned toll wagon road aimed at connecting the nascent colonys Pacific coast through Bute Inlet to the newly discovered gold fields of Williams Creek, in the B.C. interior. The project threatened the already besieged Tsilhqotin people facing their first major outbreak of smallpox, spread largely by infected blankets sold by traders. These white people, they bring blankets from people who die of smallpox, said former Tsilhqotin chief Henry Solomon, in an oral account of the small pox outbreak contained in a book called Nemiah: The unconquered country, by Terry Glavine. Then he wrap them up and he sell them to these Indians, then the Indian, he didnt know, he just sleep on it, them blankets. Pretty soon he got them sickness, and pretty soon the whole camp got it. So pretty soon my grandmother and his sister, theyre the only one that survive. The road work began to cause friction with the Tsilhqotin, even though some found jobs with the work crews. There were incidents of road workers raping Tsilhqotin girls. The Tsilhqotin who worked with the crews were mistreated and denied food. Then, in the spring of 1864, four bags of flour were stolen from a road crews base camp. The crews foreman threatened the Tsilhqotin with smallpox for stealing. J ournalist Melvin Rothenburger, who wrote a book called the The Chilcotin War, believes this threat may have helped spark the war. That could have been an important factor <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -5- an informative <e-note> by fourarrows@rogers.com 6July 2014 because of the fear of smallpox and it had been rampant, said Rothenburger, whose great-great grandfather Donald McLean was killed in the ensuing battles with the Tsilhqotin. News of the smallpox threat and rapes stirred a group of Tsilhqotin to launch what turned into a guerilla war against the settlers. Of this group, a war chief known as Klatsassin or Lhatasassine, meaning We do not know his name, came to embody the Chilcotin War. They fired their first shot on the morning of April 28, 1864. It killed a ferryman who refused Klatsassin and his party passage. The next morning, at daybreak, Klatsassin and his war party descended on the main work crew camp. The cook, tending the fire, was the first to be cut down by gunfire. The Tsilhqotin then severed the ropes of the tents, shooting and stabbing nine of the crew members to death. Three managed to escape. The war party then moved to another camp. There, the foreman who issued the smallpox threat was killed along with three other men. The Tsilhqotin used their knowledge of the rugged terrain to their advantage, setting traps, launching ambushes and eluding colonial parties for weeks that had been sent into the bush to track them down. Rothenburgers greath-great grandfather McLean met his death after falling into a trap set by the Tsilhqotin. McLean followed a trail of wood shavings carved by the Tsilhoqotin that led to an ambush. McLean, known to the Tsilhqotin as Samandlin, wore a breast plate for protection, said Rothenburger. The Tsilhqotin knew about this and set it up so they could get behind him, said Rothenburger. With the colony ramping up efforts against the guerillas, the Tsilhqotin sought to negotiate peace. Believing they had been granted immunity, Klatsassin and a group of chiefs travelled to meet with Frederick Seymour, then the governor of the colony of British Columbia. They were shackled in their sleep and taken prisoner. Klatsassin and four others were convicted of murder. They were hung at 7 a.m. in what is now Quesnel, B.C., on Oct. 26, 1864. Before he died Klatsassin famously said, We meant war, not murder. Two other Tsilhqotin men also turned themselves in, offering to pay compensation for what they did. They were also arrested and sentenced to death. One managed to escape, but the other man named Ahan, was hung in New Westminster on J uly 18, 1865. To this day, the Tsilhqotin are still trying to recover his remains. The provincial government apologized for the hangings in 1999. Postscript: John Robson, editor of the New Westminster Columbian, who would later go on to serve as premier of the province, warned at the time: Depend on it, for every acre of land we obtain by improper means we will have to pay for dearly in the end, and every wrong committed upon those poor people will be visited on our heads. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -6- an informative <e-note> by fourarrows@rogers.com 6July 2014 The Initial Reaction to the Decision Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying." "We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News. "It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia. "Its a game-changer we are in an entirely different ball game, Phillip added. "I didn't think it would be so definitive I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment." "This is the end of denying rights and title," Chief Joe Alphonse, Tsilhqot'in tribal chairman, said in a statement. "This case is about us regaining our independ- ence, 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. Chief Alphonse called the ruling amazing and said it marked the beginning of a new Canada. Chief Alphonse said the ruling also sent a message to Canadas political leaders. It sends a strong message to all provincial leaders and Stephen Harper to deal with us in an honourable and respectful way, he said. This decision will bring much needed certainty for First Nations, government and industry. You want certainty for your investors to come into British Columbia and Canada? Then deal with us as First Nations people, deal with us in a meaningful way, in a respectful way." Bernie Mack, one of six Tsilhqotin chiefs, left no doubt that proponents and governments will have to demonstrate a substantial and compelling public purpose to gain the consent of First Nations. The days of easy infringement are gone, he said. Art Sterritt, executive director of the Coastal First Nations, said the ruling puts the onus back on government to consult with First Nations and not industry. Its absolutely a wonderful day for First Nations.""The federal government had punted it over to Northern Gateway and now we know that if youre going to do projects like Northern Gateway, they need our declaration and if they dont have that we can declare that project dead. Ghislain Picard, Regional Chief for Quebec/ Labrador said, On behalf of the First Nations across the country, we extend our congratulations and convey our gratitude to Chief Roger William, the Xeni Gwetin and the Tsilhqotin National Government for their leadership and determina- tion in bringing this case forward and taking on this challenge over the past 25 years.. This is truly a landmark decision that compels us all to embark on a new course. The court has clearly sent a message that the Crown must take Aboriginal title seriously and reconcile with First Nations honourably. This decision will go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada. Theyll be greater partnership. Theyll be more coming from our people what we are willing to do and how we are going to do it and how its going to happen. photo by Darryl Dyck, The Canadian Press Grand Chief Stewart Phillip, of the Union of B.C. Indian Chiefs, smiles during a news conference in Vancouver, B.C., after the Supreme Court of Canada ruled in favour of the Tsilhqot'in First Nation/ photo by Nick Procaylo, PNG Tletinqox Chief Joe Alphonse speaks at a news conference where The Union of B.C. Indian Chiefs reacted to the landmark Supreme Court Williams decision. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -7- an informative <e-note> by fourarrows@rogers.com 6July 2014 Xeni Gwetin Chief Roger William , whose name was 2 used in the original filing responded to the decision by saying, We take this time to join hands and celebrate a new relationship with Canada. We are reminded of our elders who are no longer with us. First and foremost we need to say sechanalyagh (thank you) to our Tsilhqotin Elders, many of whom testified courageously in the courts. 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 William expressed not only thanks but relief that their engagement in good faith with Canadas highest court on this matter had been met with respect. First Nations across this country have taken legal action, entered into treaty, practised their language and demonstrated use of the land and through this they have supported us we thank you. Lake Babine Nation Chief Wilf Adam said the decision confirmed that aboriginal title is a reality in B.C., and that it extends well beyond First Nations traditional village sites. The First Nation of 2,400 members is also opposed to the Northern Gateway project, and has had concerns about mining projects. In my opinion on this decision, Northern Gateway is dead, said Adam. They will never get approval from us. He stressed that governments, and companies that want to develop in Lake Babines traditional territory, must acknowledge its aboriginal title by engaging respect-fully and proposing meaningful accommod-ation. At a minimum, this means that any development must be sustainable and safe for our land and resources, and that it must provide significant economic benefits to Lake Babine, said Adam. Haida Nation president Peter Lantin said the Tsilhqot'in case strengthens his island community's title claim, which is being prepared for trial. The Haida claim includes the surrounding ocean off B.C.'s North Coast, which Lantin expects to use against plans for oil tankers from the Enbridge Northern Gateway proposal. Perry Bellegarde, chief of the Federation of Saskatchewan Indian Nations, says the Supreme Court ruling on land rights bolsters arguments for revenue sharing with First Nations. "We've always said we should mutually benefit from the land and resources. With this decision, it will breathe more life into that concept of resource revenue sharing." Jody Wilson-Raybould, AFN Regional Chief of B.C., said the decision means we now have the opportunity to settle, once and for all, the so-called Indian land question in B.C. and elsewhere in Canada where Aboriginal title exists through good-faith negotiations. This has to be a wakeup call for governments, both provincial and federal, and we look to Mr. Harper to actual-ly see this as the fundamental impetus to sit down at the table and meaningfully move towards reconciliation. Federal Indian Affairs Minister Bernard Valcourt said in a statement that the government will review the "complex and significant issues" in the 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," Valcourt said in the statement, adding that the government has concluded four treaties in B.C. since 2006, with others under negotiation. Mr. Valcourt did not explain why, if the government felt negotiated settlements were the best way to tell with First Nation claims, the federal government had refused to Communications with the Tsilhqotin Nation are through 2 Myanna Desaulniers, Communication Coordinator, Tsilhqot'in National Government, 253 4th Avenue North, Williams Lake, BC V2G 4T4, Phone (250) 392-3918 Fax (250) 398-5798
Xeni Gwetin Chief Roger William <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -8- an informative <e-note> by fourarrows@rogers.com 6July 2014 negotiate settlement based on aboriginal title, and had opposed the William case for so many years. NDP critic Jean Crowder welcomed the ruling and said the governments at both levels have for too long taken the chance that aboriginal title would never be recognized in going ahead with development. "Now, all levels of government will need to stop and consider whether or not they've met the duty to consult or justified an infringement. Governments will have to meet this obligation so development can continue, with First Nations determining how to use the land, not third-parties, to the benefit of many Canadians." Ms. Crowder said the court ruling shows the federal government should set up a protocol for First Nations consultation on future resource development projects, so that everyone is aware of the proper duty to consult and obtain aboriginal consent. It would be a way better process if you had that protocol in place and First Nations were at the table right from the outset so that you didnt get to the permitting and approval stage only to be told, Oops we need to go back now and do the consultation that if we had of done three years ago we might not be in this spot,' said Crowder. Companies then understand exactly what they have to do." The court also said governments may have to reassess prior conduct and legislation, which could prompt court challenges of past government actions, including controversial 2012 amendments to the Canadian Environmental Protection Act and the Navigable Waters Protection Act, Crowder said in a statement. Liberal aboriginal affairs critic Carolyn Bennett said the landmark decision reaffirms "that governments cannot avoid their constitutional duty to consult and accommo- date the rights of Indigenous Peoples across Canada." B.C.s Attorney General, Suzanne Anton called the decision significant and helpful but was vague about how so, even though the government was well aware the ruling was coming. Were taking time to read this decision and to analyze it. What I can tell you from the provinces point of view is our very strong commitment to continuing to work with First Nations. As for treaty negotiations, Anton would only say they will continue. She said the government would continue to work on environmental issues with aboriginal groups, but said Northern Gateway approval, opposed by many aboriginal groups, remains off the table. We will not consider that pipeline until that condition is met, Anton said. She said the decision provides additional clarity but she urged all parties to continue with treaty negotiations. We all know the success that comes when we choose to negotiate rather than litigate. Saskatchewan Ministry of Justices Aboriginal Law officials say the ruling will have little effect in this province, and the position on resource revenue will not change. "This decision won't have an impact in Saskatchewan," said Sonia Eggerman. Saskatchewan Cabinet spokesperson Karen Hill said, "The resource revenues collected by the Government of Saskatchewan are shared with all residents as they provide important services for all Saskatchewan people, including First Nations." Alberta Ministry of Aboriginal Relations spokesman Martin Dupuis told Bloomberg BNA that the government is reviewing the ruling. It would be premature to comment on it in detail at this time, he said. Alberta continues to maintain open and productive dialogue with Aboriginal communities and our colleagues across Canada to address aboriginal issues. The decision will lead to intensified negotiations between the federal and provincial governments and First Nations over land title claims, says Gordon Christie, associate professor of First Nations legal studies at the University of British Columbia. I think the Court has been signalling that for many years now, that they just wish that the provinces and the federal government would get together with aboriginal communities and negotiate these matters, Christie told CTV News Channel on Thursday morning. And what theyve essentially done today is give First Nations the kind of negotiating stance they need for this to actually happen. . . We won't really know the implications, I think, probably for a number of years, maybe a decade or so. Until yesterday, we didn't actually have any piece of land in Canada that was clearly held under aboriginal title. We knew it existed but we hadn't had any First Nation that actually was able to establish that they had title to a piece of land. That's changed. So we now know that it's possible finally." <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -9- an informative <e-note> by fourarrows@rogers.com 6July 2014 Prof. Dawn Mills, from the University of British Columbia's Department of Mining Engineering, said the decision is an opportunity for industry to work with First Nations to evolve. "This is an opportunity to critically look positively not negatively to look positively at best practices," she said. The mining industry model was already changing, Mills said. First Nations have been open for discussion and open for business, she said. "It's not business as usual but I think it's better business than usual." Prof. William Lindsay, director of the office of aboriginal affairs at Simon Fraser University said that governments and companies will have to talk environ- mental stewardship, along with royalties and jobs, said "It's new, but I don't think people need to be afraid of it," Lindsay said. "Now we have certainty. Now we know where the clout lies and people have to get together and work through these issues." West Coast Environmental Law attorney Jessica Clogg told Bloomberg BNA the ruling could impact energy pipeline projects such as the Enbridge Northern Gateway Pipeline and Kinder Morgan's Trans Mountain pipeline twinning, both of which would move oil to Canada's west coast. Clogg said the court established strict environmental rules that neither aboriginal nations nor governments can do harm land for future generations. She said that in cases where consultation on projects is in question, the govern- ment may be required to begin those processes over. Because there are indigenous people really blanketing all of B.C., it affects everything that goes on, Clogg said. Resource companies need to act today with this in mind. Bill Gallagher, a lawyer and former negotiator for Indian Affairs, told Travis Lupick of Straight.com, This ruling is an expression of the culmination of the rise of Native empowerment. Currrently, industries looking to exploit resources on First Nations territory are advancing their economic interests through exploiting the traditional territories of the most disadvantaged communities in the country. And they have been massively empowered by this ruling Gallagher said the decision has provided clarity and crystallized issues that have been debated and appealed in many previous cases. This is the capstone ruling, he said. They have written this case up in such a legally bulletproof fashion that it is a masterpiece of aboriginal-law jurisprudence. Gallagher argued that stakeholders, including corporations, should therefore view the Tsilhqotin decision as a liberating experience. They now at least know what is expected of them: to address First Nations one on one, to extend a hand of corporate friendship, he said. Gallagher predicted the days of industry relying on government to settle disputes with First Nations will become a thing of the past. Theyll have to now go out and bring First Nations on as partners, he said. Canadas Atlantic provinces were the first areas settled by the British. There the British were outnumbered by First Nations who included Mikmaq and the Maliseet, and so often focused on signing peace and friendship treaties the primary purpose of which was to tamp down hostilities between First Nations and colonizers. In 1999 the Supreme Court ruled that these treaties had no application for settling land issues on unceded land. Gallagher believes that Tsilhqotin is likely to set precedent for these claims as well. Bob Johnstone, writing in the Regina Leader-Post, said the decision will likely give encouragement to First Nations, like the Athabasca Chipewyan First Nation, which is suing the Alberta and federal governments over potential environmental damage and alleged adverse health affects from oilsands developments upstream in Ft. McMurray. Also, much of the land required by the Northern Gateway project in B.C. is not covered by treaties, but the Supreme Court ruling make its clear that aboriginal title will require rigorous negotiations between the First Nations, the government and the proponent, Enbridge. Saskatchewan, which is covered by treaties, will not emerge unscathed by the Supreme Court ruling. Calgary lawyer Allisun Rana represents a number of British Columbia First Nations whose land covers a massive shale gas deposit that companies such as TransCanada Liquified Natural Gas would like to exploit. She told Elizabeth Grant of Open Democracy that she credits the Supreme Court with recognizing the need for stronger direction and greater clarity throughout Canadas courts in the face of myriad legal actions attempting to stop resource development on First Nations land: They see a lot of [these Aboriginal cases opposing resource development] and again, again, First Nations have to return to the court. If this doesnt tell governments what they should be doing, nothing will. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -10- an informative <e-note> by fourarrows@rogers.com 6July 2014 Quebec Aboriginal rights lawyer James OReilly has represented a variety of First Nations in Quebec including the Cree and Innu. According to him, land claims are currently being negotiated by nine separate groups in Quebec and despite the fact that the ruling is not expected to apply to more developed areas that are no longer used traditionally he believes that up to 40% of Quebecs contested territory could be determined by this ruling. Brad Armstrong, a partner with law firm Lawson Lundell LLP in Vancouver, told Drew Hasselback of the Financial Post, This decision [will result] in reasonably large tracts of land in the province [being] privatized. They will be held by First Nations, and they will have the exclusive right to determine howe those lands will be used. In any case, the era of "business as usual" in dealing with First Nations in resource development in Canada is over. Decision could ripple into Alberta, lawyers say Thanks to Bob Weber, Canadian Press
The Supreme Court of Canada decision could affect many Alberta court cases between First Nations and govern- ments over oilsands development, lawyers say. "I can think of a few law firms that are probably redrafting their briefs right now," said Larry Innes, a member of a Toronto law firm representing the Athabasca Chipewyan, downstream from the Fort McMurray region. Roger Townshend, a member of the same firm, said while the Tsilhqot'in decision didn't break any new legal ground, it did show the court wants governments to interpret aboriginal rights broadly on traditional lands. "Really what was happening was Canada and B.C. were interpreting those doctrines in an extremely narrow and rigid way and the court said, no that's not the way to do it. You've got to look at things more holistically." Victoria-based lawyer Robert Janes, who represents a number of Alberta bands, said the court has raised the bar for governments seeking to approve major developments that could infringe on aboriginal land-use rights. "The court seems to be sending quite a strong message that infringement should not be allowed to drift to being a general public-interest type of analysis," he said. "It's expected to be more rigorous than how it's been approached in the past. Likewise, the duty to consult is not intended to be a polite chit-chat and do what you're planning to do anyway." The Alberta and federal governments are facing a number of court actions that attack many of the recent changes made to regulating energy development. Many involve issues around aboriginal consultation, consent and the impact of development on treaty rights. The Beaver Lake Cree, for example, are in court arguing that so much piecemeal development has been approved on their lands that their treaty rights are increasingly meaningless an issue close to the heart of the decision, said Innes. "When (governments) consider the public interest they must do so in a way that balances the rights of all Canadians with aboriginal rights," he interprets. "You can't simply do it on the basis of what's good for the economy. You cannot, as a Crown, go in and say 'It's good for the guys in Calgary, too bad about Fort Chipewyan.' You actually have to turn your mind to what would be the best outcome for both." Although B.C. has few treaties, J anes agreed the Tsilhqot'in ruling will be a factor in the Alberta cases. "We will certainly be using it in our arguments." When you get to stage where you're looking at these large-scale developments inAlberta which potentially infringe rights, then the court's saying you're going to be held to a very high standard. There has to be a compelling public purpose." Innes said he expects to cite the judgment at regulatory hearings into TransCanada's Grand Rapids pipeline project from Fort McMurray to Edmonton, now under way. "The validity in which the way consultation issues are addressed by the Alberta Energy Regulator or rather summarily dispensed with by the Alberta Consultation Office is what we're putting forward," he said. "There is no way in way in hell that the process that has been set up could possibly meet those duties." by Wendy Steuck Supreme Court land title ruling may open up First Nations financing Vancouver, 2 July 2014 A landmark legal decision by the Supreme Court of Canada involving aboriginal title is raising speculation about whether the newly-affirmed title could be used as leverage to obtain financing or negotiate with companies that want to build, say, a wind or hydro-power project on the land in question. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -11- an informative <e-note> by fourarrows@rogers.com 6July 2014 Before [the ruling], we had two types of land in the province fee simple and Crown land, says David Austin, a Vancouver lawyer. We now have a third concept aboriginal title land. . . but given that aboriginal title is held on a collective basis, it would not likely provide lenders the security of fee-simple property. But he expects new financing models could emerge. It does not appear that First Nations can pledge their aboriginal title lands for security for money required for economic development, Mr. Austin said. But I am very confident that this problem can be worked out. J oan Young, a partner with McMillan LLP law firm in Vancouver is less convinced. I dont see a bank relying on that [aboriginal title] in terms of advancing funds to a First Nation, Ms. Young said. If youre thinking with your bankers hat on, you would ask, Do I give money to somebody when another party can still go in there and use it for another purpose? Probably not. Pipelines. Gold mines. Liquefied natural gas. Coal. Logging. Fisheries The list of British Columbia natural resource projects potentially affected by a landmark ruling from the Supreme Court of Canada is long and lucrative. And industry, policy-makers and indigenous leaders alike will be sorting through the fallout from the decision on aboriginal title for some time to come. A coalition of B.C. business groups had intervened in the case, telling the Supreme Court that a wide definition of title would threaten the economy. The provinces right to approve projects to develop natural resources was in question aboriginal title lands are no longer to be considered Crown land. The coalition commented the ruling will be read with great care by industry, native groups, claim negotiators, governments and lower courts alike and will have repercussions for years to come in all kinds of resource development projects, such as the Northern Gateway pipeline, on contested lands in all parts of Canada. Alex Ferguson, VP of policy and environment for the Canadian Association of Petroleum Producers, told Bloomberg BNA the ruling gives clarity on consultation on developments. Moving forward, he said, companies need to examine their work to ensure they are engaging in proper consultation with aboriginal groups. David McLelland, chairman of the Association for Mineral Exploration British Columbia (AME BC), said in a J une 26 news release the ruling affirms the government's duty to consult and accommodate. Members of AME BC recognize that respectfully engaging with First Nations early and often creates mutual understanding, trust and respect, McLelland said. We have seen that mutual benefits can often occur when this approach is taken by everyone involved, including industry, First Nations and government. News On The International Markets Too In an article by Paul Vieira, the Wall Street Journal said the historic ruling could have repercussions for resource companies operating in the country. It would have ramifications across the country where there are unresolved land claims between Canada and aboriginal groups. . . the ruling opens the door for other aboriginal groups with unresolved land claims to seek title now that there is a better understanding of the evidence required. However, legal experts say this could take years amid negotiations or legal battles with governments. British Columbia has hundreds of unresolved land claims. The decision adds conditions, however, that would be expected to make it more difficult, although not necessarily impossible, for developments such as pipelines, mines and forestry to proceed without aboriginal consent. There are no new pipelines being proposed to pass through this particular area. Enbridge Inc's planned Northern Gateway pipeline route lies well to the north. However the decision could stiffen the resolve of native groups to try to block projects or demand extra concessions. Natural resource companies had warned would create investor uncertainty and that recognition of broader territorial title would undermine their ability to attract capital and realize a return on resource projects.
B.C. companies nervous over SCC Decision; Tahltan Nation announces intention to launch legal fight to block coal mine By Gordon Hoekstra ghoekstra@vancouversun.com, Vancouver Sun Vancouver, B.C., 27 June 2014 B.C. businesses worry a landmark high-court decision that broadens First Nations land rights could create barriers to development and stall key industrial projects worth billions of dollars. Proposed projects that could be affected include Enbridges $7.9-billion Northern Gateway oil pipeline, Kinder Morgans $5.4-billion Trans Mountain oil pipeline, and <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -12- an informative <e-note> by fourarrows@rogers.com 6July 2014 tens of billions more in liquefied natural gas plants and gas pipelines. Mining and forestry projects could also be at risk. However, industry representatives also cautiously offered the opinion that the decision could provide more clarity on how resource development must be conducted with First Nations, which could end up being a positive for the province. The unanimous Supreme Court of Canada ruling largely accepted a 2007 B.C. Supreme Court interpretation of what aboriginal title means for the Tsilhqotin in central B.C., rejecting a far more narrow view delivered by the B.C. Court of Appeal in 2012. Ultimately, it granted the Tsilhqotin title to 1,750 square kilometres of largely undeveloped land. A person could be optimistic about it and say this helps clarify the ground rules Maybe this is going to help projects move forward, said Lael McKeown, a past president of the Kitimat-Terrace Industrial Society and a construction business owner with her husband Dave. The other thing is, there should be an expectation that First Nations, as they are given more control of the land they also assume the responsibility of maintaining a level of resource development so we can sustain our economy, said McKeown. Terrace and other northwest B.C. communities such as Kitimat and Prince Rupert are just emerging from a serious downturn in the forest sector with the help of prospective LNG projects (backed by global energy heavyweights such as Petronas, Shell and Chevron), but also a rebuild of Rio Tintos aluminum smelter, Imperial Metals Red Chris gold and copper mine and the prospective Northern Gateway oil pipeline. With the LNG possibilities, this is the first time theres been huge optimism in the area. It would be pretty dampening to have (the court decision) stall some LNG projects because we only have a small window of opportunity to make them happen if we are going to get our niche of global market, said McKeown. Obviously this decision has a big impact on resource extraction, she said. Other B.C. businesses and industrial groups said Thursday they were still reviewing the decision given its complexity and ramifications for business and industry, issuing a stream of cautiously-worded statements. Our initial view is that todays Supreme Court decision is an important clarification of aboriginal title and provides for greater certainty around the application of provincial law and regulation on the land base in British Columbia, said B.C. Business Council president Greg DAvignon. He noted that B.C. companies have already reached hundreds of beneficial agreements with First Nations, and the province is using tools such as revenue-sharing to reconcile economic activity with aboriginal rights and title. Council of Forest Industries president J ames Gorman. warned that regulatory certainty is a critical factor in the forest industrys ability to do business. Todays decision further emphasizes the importance of working closely with First Nations and building on the important relationships we have worked hard to establish over the past decades. Mining Association of B.C. president Karina Brino acknowledged the decision confirms that resource development over land where aboriginal title is asserted must, by law, be preceded by meaningful consultation. Kinder Morgan Canada president Ian Anderson said the decision aligns with the value the company places on developing strong relationships with its aboriginal partners. We aim to connect directly one-on-one with aboriginal communities to address concerns, and look for opportunities with mutually beneficial outcomes, he said. Davis LLP Forestry Law Bulletin says that within Tsilhqotin is the spectre for lawsuits on account of damages for timber harvesting under the authority of the Forest Act prior to a declaration of Aboriginal title. While sufficient consultation and accommodation may minimize damages in any particular instance, the problem is that most, if not all, Crown lands subject to harvesting rights under the Forest Act are likely also subject to some claim to Aboriginal title. With the Tsilhqotin Nation Decision, the Supreme Court of Canada has demonstrated that even a nomadic First Nation with a relatively sparse population can succeed with a claim of Aboriginal title over a relatively expansive tract of land. This result will undoubtedly have some effect upon the Crowns contingent liability calculus. Early Actions Within hours after the ruling, the Tahltan Central Council announced its intention to prepare its claim against the Province of British Columbia and Fortune Minerals Ltd for the controversial $789-m Fortune Minerals Arctos Anthracite Coal project proposed for Mt. Klappan in the <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -13- an informative <e-note> by fourarrows@rogers.com 6July 2014 Klappan area of Tahltan territory. It has retained J oseph Arvay, Q.C. of Farris & Co. to lead the litigation team. The Arctos Anthracite Coal project is located in a critically important area that requires long-term management and protection to preserve cultural and ecological values for the Tahltan people. Mount Klappan, which is part of an area known as Sacred Headwaters which feeds three of the regions major salmon-bearing rivers the Skeena, Stikine and Nass. The Tahltan people are united in opposing an open pit coal mine in the area. The Algonquin communities of Timiskaming, Wolf Lake, and Eagle Village congratulated the Tsilhqot'in Nation for achieving a historic win before the Supreme Court of Canada in the William decision on Aboriginal Title. We are optimistic that in the face of this game changing court decision, the federal and provincial governments will now quit stalling and get on with negotiating a formal consultation and accommodation protocol with our three First Nations regarding land-use planning and natural resource development on our Aboriginal Title territories, " said Chief Terence McBride of Timiskaming. Chief Harry St. Denis of Wolf Lake said as a consequence of this unequivocal Supreme Court of Canada decision, We believe that now is the time to chart a new course, based on the recognition and affirmation of our Aboriginal Title and Rights." The territory covered under this Statement of Assertion of Rights and Title, measuring over 34,000 square kilometres, straddles the Quebec-Ontario border along the Upper Ottawa River with a large portion of it located in Ontario. The evidence, which has been in preparation for almost 20 years, shows that these communities are descended from the Algonquin bands that traditionally used and occupied the territory. 3 Kwakiutl Nation Puts Douglas Treaties On Notice The Tsilhqotin ruling reaffirms that the 1851 Vancouver Island Douglas Treaties proves Aboriginal title, said Chief Coreen Child in a public statement issued J uly 2. We are deeply moved by the resolve of the Tsilhqotin people. The ruling will have far reaching impacts on First Nations and the Crown governments. For Kwakiutl, the Supreme Court of Canadas declaration The Kwakiutl had intervened on the Tsilhqotin case to address two fundamental issues the proper test of Aboriginal title and the application of provincial legislation on Aboriginal title lands. The Tsilhqotin win reinforces a BC Supreme Court decision, made on J une 17, 2013, which found the Province of British Columbia had breached its legal duties by denying the existence of Kwakiutls inherent title and treaty rights. Further, the BC decision found that BC and 4 Canada had failed to implement and respect the Crowns 163 year-old Douglas Treaties, and encouraged and challenged the governments to begin fair negotiations without any further litigation, expense or delay. "The Supreme Court of Canada rejected the "small spots" strategy argued by Canada and recognized and affirmed that our view of Territorial Title is the basis for engage- ment with First Nations", says Councillor Davina Hunt. Since 2004, the BC government has been granting the removal of private lands from Tree Farm licenses located within Kwakiutl territory without Kwakiutl consent. Consequently, businesses, companies, and governments have exploited Kwakiutl lands with impunity. BC forestry decision-making is one example of Treaty infringement, says Councillor J ason Hunt. In 163 years, the Crown, built entire economies on North Vancouver Island without First Nations consent. They have exploited our lands and waters, and marginalized our people. The Kwakiutl believe that Crown governments and industry will have to meaningfully engage on a deeper level with when proposing to make decisions or conduct business on First Nations territories.
3 For further information contact: www.algonquinnation.ca: Chief Harry St. Denis, Wolf Lake 819-627-3628; Chief Terence McBride, Timiskaming 819-629-7091 (English/Francais); Chief Madeleine Paul, Eagle Village 819-627-6884 (English/Francais); Peter Di Gangi, Algonquin Nation Secretariat 819-723-2019 Chartrand v. The District Manager, 2013 BCSC 1068 (CanLII), 4 <http://canlii.ca/t/fz785> <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -14- an informative <e-note> by fourarrows@rogers.com 6July 2014 Tsilhqotin is Transformational: Geoff Plant, former Attorney General, B.C. 5 How the Supreme Court changed British Columbia To understand why last weeks Supreme Court of Canada decision in Tshilqotin is so important, it is helpful to know what the Court actually decided. There were three key issues or questions. First, what is the test for aboriginal title? Put another way, where will you find it? Second, what does it mean to have aboriginal title? Is it really ownership of land, or something quite different, say, just a right to be consulted about its use? Third, what authority does the provincial government have over aboriginal title lands? Are they like Indian reserves, where provincial land laws do not apply, or something different? On the first and third questions, in particular, there were sharply different views taken by the trial court and the BC Court of Appeal. Those views were based on those courts interpretations of prior court decisions. The Supreme Court has now resolved those differences. Theyve made clear what has been argued about for a long time. And that clarity, in my view, will have a profound impact on the use and development of lands and resources in British Columbia. Aboriginal title is the way our law gives effect to the fact of prior aboriginal presence on the lands of what is now Canada. Its not just the right to engage in culturally important practices such as fishing, trapping, hunting and forage - those activities are recognized and protected as aboriginal rights. Aboriginal title is how the law recognizes the indigenous claim that this land has always been ours. But putting it that way does not necessarily answer the question: what land are you talking about? Is it the land that has been most intensively and continuously occupied, say, villages and their immediate surroundings? Or is it larger areas of land, the territories over which First Nations have exercised dominion by using and regulating access for resource use purposes, assigning rights of ownership, and excluding other First Nations? In terms which do not do justice to the complexity of the question, but at least make the differences clear, it is sometimes said that this is the debate between the postage stamp theory of aboriginal title, and the mountaintop-to-mountaintop theory. If the latter, then large parts of the province will be aboriginal title lands because most First Nations in BC exercised dominion over large territories, with clearly recognizable internal rights of resource use and ownership, and histories of defending their lands against other First Nations. The Supreme Court of Canada decided its not just villages, its traditional territories. I say this not just because of the Courts statement of the requirements for the proof of aboriginal title, but also because of the Courts actual decision - reversing the Court of Appeal - that the Tsilhqotin had established their claim for title over a large part of their traditional territory. . . It is abundantly clear that aboriginal title must exist over vast tracts of the province.
As the Court makes clear, aboriginal title means ownership largely as we would recognize it. It includes the right to decide how the land will be used, and to occupy, enjoy, possess, and manage it. Put plainly, its their land. There are limits, of course. Aboriginal title land cannot be used in a way that would prevent future generations of the group from using and enjoying it. It is held communally, not individually. The court also made it clear that aboriginal owners are entitled to the economic benefits of their land, and they can use the land in modern ways, if that is their choice. There is little that is new law in this, aspect of the courts decision, but it all means much more once it becomes clear that aboriginal title exists in large parts of the province - and indeed, wherever in Canada aboriginal title has not definitively been surrendered to the Crown by treaty or otherwise. The constitution assigns exclusive legislative authority over Indians and lands reserved to the Indians to the federal government. For this reason, provincial land laws generally do not apply on Indian reserves. What about aboriginal title lands? Some courts, including the trial judge in this case, have held that aboriginal title lands are federal enclaves, where provincial land laws cannot apply. Its one thing of course to imagine the application of such a principle in a postage stamp aboriginal title context. But if aboriginal title exists throughout the province, what would happen to the authority over land and resource development that the provincial government has exercised for over a century, and on which our resource economy is founded? The Supreme Court of Canada has made new law here, by Mr. Plant is now counsel in Vancouver at law firm Gall Legge 5 Grant & Munroe LLP/ He also is a board member at Steelhead LNG Corp. Mr. Plant blogs at http://theplantrant.blogspot.ca <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -15- an informative <e-note> by fourarrows@rogers.com 6July 2014 clarifying that a controversial rule of constitutional interpretation known as the principle of interjurisdictional immunity does not apply to aboriginal rights and title. Accordingly, the province still has the authority to regulate land and resource development on aboriginal title lands. But that authority is severely restricted by requirements that have been established by the courts as they have interpreted the recognition and affirmation of aboriginal rights and title established by section 35 of the 1982 Constitution Act. In short, government may infringe aboriginal title, but only if the infringement can be justified. J ustification requires consultation with the aboriginal titleholder. It means that the infringement must be minimal, consistent with governments fiduciary responsibilities to aboriginal peoples, and backed by a compelling and substantial objective. And it may mean offering accommodations. This language is familiar to those who know the Supreme Court of Canadas decisions in cases such as Sparrow, Delgamuukw and Haida Nation. What the court has consistently been trying to do is to create a balance in which aboriginal rights are given strong recognition, without completely displacing governments ability to govern in the larger public interest. Whats important here is that the stakes are higher, once you recognize that large parts of British Columbia are not just territories claimed by aboriginal peoples but, most likely, owned by them. The court repeatedly makes it clear that the preferred method of authorizing development on aboriginal title land is to obtain aboriginal consent beforehand. In simple terms, if you have aboriginal permission, then you dont need to justify the infringement. You avoid the uncertainty that is created by the need to justify where aboriginal title is asserted but not yet proven. Absent consent, government will not know if it has justified an infringement unless and until it has survived a court challenge. This is inherently risky: as the court says, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Rather than proceed in the hope that the development can be justified, the better course is to obtain consent beforehand. There are many circumstances in which a First Nation may be willing to consent to an infringement of their asserted or proven title. But almost certainly, if the infringement is in pursuit of an economic development objective - a forest licence, a hydro-electric dam, or a pipeline project - consent will come with a price tag. Aboriginal people are unlikely to agree to the creation of economic value from their land unless they have a share in that value. The new law here is the courts decision that the province still has legislative authority over aboriginal title land. But while the province still has the power to regulate, its clearer than ever that it will only be able to exercise that authority if it is willing to share the benefits of economic activity with the aboriginal owners of the land on which it is proposed to take place. And of course, there is no requirement that First Nations consent to that activity. They may refuse, either because the price - the benefit - is not high enough, or because the cost - in environmental terms - is too high. In such circumstances, government may only proceed if it meets the high burden of the requirements of justification. What does all this mean? I am in the camp of those who see this decision as transformational both as a matter of legal doctrine and, equally importantly, in its impact. It matters that the Supreme Court has, for the first time in its history, declared the existence of aboriginal title on specific lands outside reserves. It matters that it has done so by conclu- sively rejecting the postage stamp view of aboriginal title. Only a fool would downplay the significance of this judgement for the rest of British Columbia. While it is certainly true that the court has not drawn specific boundaries of aboriginal title land anywhere outside Tsilhqotin territory, it has nonetheless inescapably redrawn British Columbia. It has raised the stakes for aboriginal participation in economic development and complicated provincial land and resource decision-making in ways that may take years to sort out. But to contend that all this is important is not to say that the sky just fell on British Columbia. There is nothing in this decision that need necessarily increase conflict or halt all development. It will certainly cause many First Nations and project proponents to take a second look at their plans and strategies. But only, in my view, if government fails to recognize that this time out, the rules really have changed, and that now, more than ever, there is a need for real political leadership, provincially and federally, on this all-important file. Now is not the time for governments to pause while they study their way into inaction. Now is the time for something quite radically different. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -16- an informative <e-note> by fourarrows@rogers.com 6July 2014 Welcome to the new B.C. Its their land: The Supreme Court ruling on Aboriginal title is a judgment for the ages
by Vaughn Palmer vpalmer@vancouversun.com, Vancouver Sun Victoria, B.C., 27 June 2014 Three decades ago Nisgaa Chief J ames Gosnell declared in the midst of the national constitutional debate that aboriginal people owned British Columbia lock, stock and barrel. Back then he generated headlines and more than a little outrage and disbelief. Today, thanks to a judgment for the ages from the highest court in the land, we should admit that he was well on the way to being right. For as Supreme Court of Canada Chief J ustice Beverley McLachlin observed Thursday in recognizing title for the Tsilhqotin people over a sizable chunk of the province, from their perspective, the land has always been theirs. So it was, so it is and so it is destined to remain for all time. This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits, wrote McLachlin in a decision joined unanimously by seven other judges. Hers was an up-to-the-moment version of title, not one that would confine native people to the traditional uses of fishing rocks and salt licks: Like other landowners, Aboriginal titleholders of modern times can use their land in modern ways, if that is their choice. But even as she looked to the future, McLachlin rooted her definition of Aboriginal title in the oldest of legal authorities, the English common law, and its equation of ownership with general occupancy of the land: A general occupant at common law is a person asserting possession of land over which no one else has a present interest or with respect to which title is uncertain. The Europeans who settled this province neglected to secure clear title from the owners who were already here. Ironically, they also imported the legal system that allowed those earlier land owners to reassert their rights, albeit more than a century (and counting) later. In Denial About Aboriginal Title Note, too, that the particulars of this case go back to an award of timber cutting rights in 1983, meaning it overlaps with nine premiers and successive Social Credit, New Democrat and B.C. Liberal administrations. B.C. governments of every political stripe have been in denial about the meaning of aboriginal title for a long time. While the specifics of the ruling only apply to the claim brought by the Tsilhqotin, the high court provided a guide for other First Nations seeking similar recognition over their traditional territories. The onus is on them to demonstrate that they occupied their traditional territories in sufficient fashion, continuously and exclusively. The Tsilhqotin were able to do that in a remote valley with no overlapping claims from other First Nations. Pointedly, they also excluded private property from their claim. Not all of the provinces 200 recognized First Nations may be able to meet the test in like fashion. But one can expect that many will, with significant consequences for the province and its economy. There was some concern that the high court might write the province out of the picture because land reserved for First Nations is federal jurisdiction. But Chief J ustice McLachlin preserved the provincial jurisdiction over management of resources, albeit in stunted fashion where it would run up against aboriginal title. Valid: Legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires. Not valid: The issuance of timber licences on Aboriginal title land for a direct transfer of Aboriginal property rights to a third party. The latter may have every forest company and other holders of timber cutting rights wondering if theyll soon be negotiating with a new landlord. The judgment did indicate that the federal and provincial governments could encroach on aboriginal land for projects in the broader public interest. Examples cited: The Chief James Gosnel, Nisgaa Nation, 1982 <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -17- an informative <e-note> by fourarrows@rogers.com 6July 2014 development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign (meaning non-native) populations to support those aims. Even then, governments would have to consult extensively, minimize infringement, compensate adequately, and be prepared to prove they have met those standards in court. Thus the provincial authority over land and resources is substantially diminished and First Nations would appear to have secured a near veto over development within their traditional territories. Welcome to the new B.C., where the rule of law now incorporates a delicate balance between European and aboriginal concepts of rights and title. Still it is recognizably the rule of law. Thinking back to the comment at the outset of this column, Chief Gosnell has long since gone to meet his maker and his Nisgaa people have since made a treaty. Before he died in 1988, Chief Gosnell had this to say about the meaning of his words. When I said we owned the place, lock, stock and barrel, nobody asked me, J immy, what do you mean by that? he told journalist author Terry Glavin. Well its the beginning point of negotiations. Thats what it is. We own the whole thing. You want my land? Lets negotiate. Then it was an invitation, perhaps even a dare. In the new British Columbia defined by the Supreme Court of Canada, theres no longer any choice. Lets get on with it. Editorial A Supreme road map on rights, duty A Supreme Court of Canada decision has better defined what is meant, and owed to First Nations by the term "aboriginal title" in this country. A long-sought victory for a collection of First Nations in central British Columbia has obvious implications for development on Crown land in areas not covered by treaty, most obviously the Northern Gateway pipeline. The decision confirmed the Tsilhqot'in Nation's title to a vast tract of land around Williams Lake. It is in line with previous rulings on aboriginal rights, but it is the first time the Supreme Court has granted aboriginal title to a First Nation. The court stressed the need for honest recognition by both parties First Nations and governments of the need to respect and accommodate the interests of each when development impinges upon traditional aboriginal territory and uses, such as hunting and fishing. The B.C. government, or any province dealing with development of Crown lands claimed by bands without treaty, will have to make vigorous effort to win the buy-in of First Nations before proceeding with their plans. That imposes on all governments a duty to consult and accommodate those interests. Resolving conflicting interests in the courts is a time-intensive and ultimately regrettable way of settling disputes. The court's sage advice is particularly meaningful as Canada enters a new era of pipeline development to move its vast supply of oil and gas to markets overseas. The Tsilhqot'in decision serves notice those First Nations must come to the table and consider reasonable efforts to meet their concerns. But it is the governments, federal and provincial, that shoulder the duty to consult and to work with the First Nations the responsibility cannot be handed off to private corporations, consultants or agencies. The Tsilhqot'in claim to the land took more than 30 years to be recognized and now must be addressed for logging to proceed. The better way to protect the interests of all is to move expeditiously to sign land-settlement agreements. Any First Nation or government that would choose to hold hostage their mutual interests in protracted, expensive battles will have to answer to the courts, which now have another guide from the Supreme Court to follow. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -18- an informative <e-note> by fourarrows@rogers.com 6July 2014 The claims are just. But the Supreme Court ruling means chaos by Gordon Gibson 6 ggibson@bc-home.com Imagine that you have been involved in a very long, very important negotiation extending over years, a power struggle in a game with uncertain rules, with each side holding its cards very close to the vest. Imagine some progress is finally being made, and then into the room walks an outsider who hands one side four aces and a joker. The situation is suddenly entirely new and no one knows quite what to do. The wheels fall off for a long time this is what this decision will do to the B.C. treaty negotiation and reconciliation process.
Alarmist? No. Its exactly what happened in 1997, when the Delgamuukw decision on aboriginal title came down, an equally momentous event. The negotiators on all three sides (federal, provincial and aboriginal) took years to regroup, but progress was again being made until the Tsilhqotin decision. The Supreme Court has now defined aboriginal title in an expansive way. Title confers the exclusive right to control that land in a much stronger manner than ordinary Canadians with private property. Any activity on that land must have consent from the relevant nation. (This award of 1,700 square kilometres was to a small subgroup of the Tsilhqotin Nation. There are about 200 Indian Act Bands in British Columbia.)
The key word is consent. The old rule was consultation and accommodation if required. Lacking consent, governments still have a right to infringe on title in certain circumstances but must pass high hurdles of justification another recipe for litigation. This is a major shift in the balance of power and will rightly elevate aboriginal expectations. But the other side is that deals will freeze until things are sorted out, which is bad for everyone. This first award of aboriginal title will surely result in a mushrooming of claims throughout the province. The upshot will be that major resource projects, pipelines, mines and the like will face the kind of uncertainty that investors hate. (The new certainty will be more litigation.) Many projects will simply be abandoned and new opportunities will be spurned. There are British Columbians who will say, Hooray! These are the sort who believe that money comes from banks and food comes from supermarkets and dont understand what pays for health care.
This commentary does not dispute the justice of First Nations claims, nor give any credit to governmental wisdom. The treatment of our First Nations has been awful. For four years, I sat on the Gitxsan Nations side of a treaty table and will say without hesitation that governments were not bargaining in good faith. Our proposals were imaginative and negotiable. The government representatives mandates are narrow and inflexible everyone agrees with that. The blame for the current situation lies squarely in the fat laps of governments.
So, we have a mess. B.C. Premier Christy Clark has a natural-gas pipe dream for provincial riches. Stand by for aboriginal title claims all along the proposed routes under the new law, which will allow significant new attempts at toll-gating. This will either frighten off proponents or eat up the provinces hope of tax revenues. We have a narrow window on liquid natural gas, which may now close as competitors occupy the markets.
Mining was making a comeback in B.C. Then the giant New Prosperity project was shot down, with aboriginal objections a major factor. Look for more of this while the new world of aboriginal title gets sorted out. The solution, if any, comes in two parts. The first is to genuinely treat First Nations claims with respect. The provincial government has made a lot of progress, but Ottawa remains in the dark ages. It is going to cost a lot of money many, many billions and take a lot of cabinet time, but so it should.
The second part is being honest with everyone. It is the duty of governments to facilitate the development of the economy, and they are going to have to firmly lay down rules that all parties will be able to rely upon. Governments have been politically frightened of aboriginal peoples since Oka, but they still have a duty to the general public. There is an honourable way out, but, alas, it involves facing the facts. Gordon Gibson is a well-known B.C. columnist and the author 6 of A New Look at Canadian Indian Policy: Respect the Collective Promote the Individual. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -19- an informative <e-note> by fourarrows@rogers.com 6July 2014 First Nations mistaken in their celebration of Supreme Court ruling Ian Mulgrew, Vancouver Sun columnist Welcome to Colonial Courtrooms, should have been the title of the Supreme Court of Canadas landmark aboriginal rights judgment. While B.C. natives were busy last week celebrating the courts affirmation of their aboriginal title, they should have paid closer attention to the fine print. In spite of all the hand-wringing about threats to resource development and the land mass of B.C., this is a big victory for governments. In the unanimous 8-0 decision, which dismissed with nary a nod the last half century of strident native assertions of sovereignty, the high court said B.C. natives are not unlike any other litigant squatter. First they must establish they are the same people who have been living on and using the land forever, and then their rights will be decided by governments through talks or, in the end, by its appointed judges. No longer will rhetoric about government-to-government discussions have currency Chief J ustice Beverley McLachlin decreed aboriginal title flows from occupation in the sense of regular use of land. McLachlin skirts issues of governance and sovereignty and notes only that aboriginal land rights survived European settlement and remain valid unless extinguished by treaty or otherwise. Although aboriginal peoples have some extra rights constitutionally, government can still expropriate or place easements on their land just as they can to anyone elses in the name of the greater good. Like the rest of us, the natives have the right to take their case to court, said J ustice McLachlin. As long as the government negotiates in good faith and is willing to cut a reasonable cheque, any mine, industrial development or pipeline can proceed. How radical. There is no native veto. Natives may be able to establish aboriginal title but once they do, they dont appear to be much better off than non-native landowners in a fee-simple dispute with government. Like the rest of us, they can tell it to a judge and we all know how that works. Their control of the land, insofar as they can benefit from it, is constrained by the community nature of their rights and the need to look after the interest of future generations, which again presumably is subjected to judicial review given the fiduciary obligations involved. Consider as well that if Tsilquotin is a benchmark, we could hand the same deal to B.C.s roughly 200 other First Nations and still have two-thirds of the province left. What they won here was an area of some 1,700 square kilometres less than the size of Metro Vancouver a wilderness with about 200 residents, a handful whom are non-aboriginal. This 339-day trial was an embarrassment: Private lawyers got rich and the costs were in excess of at least $40-million. The dispute in its broadest sense involved at most a group of six bands numbering 3,000 people and raw, isolated land that isnt worth a fraction of the cost of the litigation. The Supreme Court should have pointed that out, and castigated both levels of government for ignoring their duty and obligation to the Tsilquotin instead of dragging them through the courts. There are fewer than one million First Nations people across the country and this decision is irrelevant to most of them because they have treaties. Most of the countrys non-status Indians are in this province and it is here that the Supreme Court decision has impact. In B.C., the old colonial administration stopped signing treaties, leaving most of the province uncovered, and no successor government signed pacts. There are 155,000 First Nations people in B.C. only 45% who live on a reserve and they are hobbled by poverty and other disadvantages that are too numbing to recite. This decision is a death knell for their dreams of sovereignty and the opening bell for a new native land-and-resource exploitation rush. With this judgment, the focus shifts from the recognition of native self-government and the devolution of powers to appropriate First Nations structures to divvying up the pie. We will see a burgeoning of the already crowded industry of land-claims lawyers, consultants and native ethno- cultural-historiographers and a blizzard of new litigation. Think this marathon, decades-long court case is unique? J ust wait. This decision has brought clarity but its a clarity that brings consequences that I think many natives may not welcome. Chief J ustice McLachlin calls it the new governing ethos <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -20- an informative <e-note> by fourarrows@rogers.com 6July 2014 of reconciliation. All I hear is a new phrase for assimilation, and all I see is a roadmap for non-aboriginal interests and governments to achieve their ends. We can infringe on native title as long as we justify it as a necessary part of the reconciliation of Aboriginal societies with the broader political community of which they are part. Resistance is futile, come on down aboriginal brothers and sisters and be part of European litigation culture. Hmmm, heck of a victory. Thats a game-changer all right, but maybe not in the way natives think it is. Lavish First Nations subsidies promote fanciful thinking By Lorne Gunter ,QMI Agency Heres a proposal for dealing with First Nations objections to resource development (and projects such as pipelines) on land they claim is theirs by tradition: Lets have the federal government cut off annual subsidies to reserve governments. That way, First Nations would have to decide whether or not to allow development based on the same criterion the rest of Canadians use to decide their financial priorities. Can we afford to? Can we afford not to? Without the billions in tax dollars annually showered on First Nations, chiefs and councillors would have to choose with their heads rather than their sentimental hearts. This is similar to my argument that Quebec should lose much of its annual equalization subsidy. Quebec govern- ment makes foolish fiscal choices all the time because it can. It doesnt have to own up to its own poor judgment it can count on Ottawas billions year after year. Quebec provides such lavish social benefits as half-price university and college tuition for in-province residents. It also offers cheap, cheap daycare, while at the same time running up huge annual deficits. The Quebec government has also refused to develop resources such as shale gas and oil out of green concerns. If developed, shale alone could bring Quebecs treasury nearly $2-billion a year. So the only reason Quebec can offer such rich benefits to its citizens is that the provincial government receives $8- to $10-billion in annual equalization payments. But why should taxpayers in the rest of the country subsidize Quebecers social fantasies? That province should have to maximize all its own-source revenue potential before receiving a single dime from the rest of Canada. Indeed, this logic should apply to every province, just as it should also apply to First Nations. After all, First Nations are the most heavily subsidized of all Canadians. The Supreme Court has ruled that First Nations can apply for title to huge tracts of land way beyond the boundaries of their reserves. And if successful at winning title, they can have an effective veto over most development on these broad, traditional hunting grounds. The courts ruling was a little more nuanced than some reports would indicate, but not much more. Aboriginal title flows from occupation in the sense of regular and exclusive use of land, Chief J ustice Beverley McLachlin wrote. This will not always be an easy standard to satisfy. A present-day First Nation will have to show that its ancestors routinely hunted, fished or harvested over land it is claiming as its own. Moreover, it will have to show that competing First Nations didnt also make regular use of the same tracts. But once such title is established (and during the whole process to establish whether or not title exists), the justices decided governments have an obligation to seek approval in advance from any First Nation making a claim against the land where develop-ment is proposed. This will likely turn out to be a huge can of worms. Many First Nations have fallen under the thrall of radical environmental groups backed by billionaire American lefties. If nothing else, Thursdays ruling gives the aboriginal-environmentalist alliance a powerful new club to hold up Canadas economic advancement for years. However, the biggest reason First Nations feel comfortable stalling or even halting resource projects is the fact they can survive on their current taxpayer subsidies of $17,000 to $25,000 for every man, woman or child on reserves. Such lavish subsidies permit First Nations to indulge in fanciful thinking because they do not have to factor in the cost to themselves and their families of rejecting development. So end the subsidies and encourage more rational land- claims negotiations. 7 <e-notes> editorial comment: The Treaty negotiations were 7 explicitly to prevent dependency. It is the failure of governments to keep the Treaty promises that has passed the bill to taxpayers. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -21- an informative <e-note> by fourarrows@rogers.com 6July 2014 Canadas First Nations The atlas of King George: A 250-year-old promise to indigenous peoples still binds The Economist WHEN King George III proclaimed in 1763 that Canadas indigenous peoples had rights to their ancestral lands, it bought peace with the locals who outnumbered and sometimes outfought the British colonists. But as the balance of inhabitants shifted indigenous people now account for only 4.3% of the population governments took an increasingly narrow view of that promise. In some cases they ignored it completely. On J une 26th the Supreme Court of Canada provided a sharp reminder that King Georges word is still law. The Court ruled that the Tsilhqotin First Nation had title to 1,700 square km (650 square miles) of land in the western province of British Columbia. Unlike many First Nations groups (as Canadas indigenous Indians are known) outside BC, the Tsilhqotin, who number about 3,500, never ceded rights through a treaty to their remote, mountainous territory. When the provinces government granted logging rights to a private company in 1983, the Tsilhqotin fought back through the courts. The unanimous Supreme Court decision is the culmination of that battle. The decision will have wider effects. Gordon Gibson, author of a book on Canadian Indian policy, predicts it will cause chaos and cast a pall on the development of natural resources. Ecstatic indigenous leaders think it will give them more say over resource projects across the country. The lawyer who represented the Tsilhqotin in court noted that the proposed Northern Gateway pipeline to carry Alberta crude to the west coast, approved by the federal government in J une, crosses land that could be subject to similar claims. Although this was the first time the Supreme Court of Canada had affirmed indigenous title to a specific parcel of land, it had been inching towards this moment since 1973. That was when it recognised that indigenous title existed. Later cases clarified that the Crown did not have a pre-eminent claim on territory not covered by treaty. In its latest ruling the court said that the nomadic Tsilhqotin could claim areas where they routinely hunted and trapped in addition to sites where they lived. Its a step rather than a leap, says Bob Rae, a lawyer and former MP who now specialises in indigenous law. The ruling applies to unceded land and not to territory covered by the numerous treaties in much of the rest of Canada. Governments retain the right to override indigenous title, but only for what the court called compelling and substantial objectives. That said, companies with their eye on Canadas natural resources have seen that indigenous groups are increasingly asserting their legal right to be consulted before development takes place on their territory. The Supreme Court helpfully pointed out that obtaining the consent of an indigenous group in advance will help governments and firms avoid a lot of legal grief. The biggest impact is likely to be felt in BC, very little of which is covered by treaty because successive provincial governments refused to recognise the existence of indigenous title until forced to do so by court rulings in the 1990s. The BC government has been dragging its heels in treaty negotiations and opposed the Tsilhqotin in court. Resource companies wanting certainty for their investments will now add their voices to those of the indigenous groups in seeking treaties. photo by Darryl Dyck, The Canadian Press Companies with their eye on Canadas natural resources have seen that indigenous groups are increasingly asserting their legal right to be consulted before development takes place on their territory. The Supreme Court helpfully pointed out that obtaining the consent of an indigenous group in advance will help governments and firms avoid a lot of legal grief. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -22- an informative <e-note> by fourarrows@rogers.com 6July 2014 by Brian Henderson Supreme Court B.C. land-claim ruling has staggering implications for Canadian resource projects Vancouver, 26 June, 2014 Objections raised by B.C. aboriginals to proposed logging in their traditional hunting grounds have resulted three decades later in the clearest and farthest-reaching decision on Indian land claims and title, with the Supreme Court of Canada upholding on Thursday a lower court ruling that gives First Nations effective control over vast tracts of territory outside their reserves. While the ruling deals specifically with litigation over 1,700 square kilometres in B.C.s central interior, for centuries home to six Tsilhqotin Nation bands with a common history and culture, it will influence and likely instigate more land-based claims across Canada. Thursdays decision establishes conditions aboriginal groups must meet to press collective rights on territories outside their settlements or formal treaty boundaries. Written by Chief J ustice Beverley McLachlin, the unanimous ruling says that aboriginal title flows from occupation in the sense of regular and exclusive use of land Occupation sufficient to ground aboriginal title is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty. It means that economic development proposed by non-aboriginals such as resource extraction and pipeline activity requires explicit consent from host First Nations on land where the Supreme Courts expanded concept of land title is established. Without agreement, proponents must show the need for development on traditional lands is pressing and substantial. They must also financially satisfy aboriginal groups. As they did previously, host governments will become involved. On land where aboriginal title is merely asserted, governments must at least consult with local First Nations, and, if appropriate, accommodate their interests. The word was left open to interpretation. Aboriginal groups celebrated Thursdays decision as soon as it was announced. Some took shots at their historic adversaries. We are pleased the court did not succumb to the fear-mongering advanced by the provinces and industry groups, said Cheryl Casimer, an executive with First Nations Summit, which says it speaks on behalf of B.C. aboriginals involved in treaty negotiations. Instead, the court has given a solid, considered decision based on the Constitution and precedent case law. The implications are staggering: In B.C., for example, First Nations opposing projects such as the Northern Gateway pipelines may no longer need to raise blockades or anticipate lengthy court battles in order to stop shovels from hitting the ground. With Thursdays ruling, they may assert title and prevent outside intrusions on the basis of their occupation, or proven historic use. Thats what one Tsilhqotin Nation community attempted in 1989, after a Prince George-based forest products company submitted to the B.C. government a plan to log blocks of forest on territory used by their people but considered by governments as Crown land. In response, the Xeni Gwetin declared the area off limits to commercial exploration, logging, mining and road building. Henceforth, they said, non-natives could ask permission to come and view and photograph our beautiful land, and hike and camp subject to our system of permits. Litigation commenced and the forest products company was eventually prevented from logging certain blocks. Other companies applied to log in neighbouring lands. A blockade went up, keeping logging trucks from entering the territory. More battles were waged in the courts and in Tsilhqotin communities; meanwhile, B.C.s then-NDP government continued granting logging permits to private, non-First Nations companies. A pair of Tsilhqotin legal actions were consolidated in 2000 and two years later, the matter went to trial in B.C. Supreme Court. There is a fundamental dispute between the province and Tsilhqotin people on the issue of land use, noted the trial judge, David Vickers. The result of this litigation has been to bring logging in the Claim Area to a halt. According to the Supreme Court of Canada ruling, governments must show compelling reasons to justify any incursions on Aboriginal title lands. Pest and forest fire prevention were given as examples. Expect to hear similar demands from other First Nations across Canada. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -23- an informative <e-note> by fourarrows@rogers.com 6July 2014 If We Do It For Aboriginals, Why Not Protect Property of All Canadians? by Andrew Coyne, Postmedia News The Supreme Courts Tsilhqotin decision, as everyone instantly recognized, is a legal earthquake. Though in some ways a summation of the courts previous rulings, it is the first to confer aboriginal title to a specific piece of land, and the first to define it in concrete terms. In so doing, it radically extends previous lower court conceptions of title, to include not only the actual settlements historically occupied by aboriginal groups, but all lands over which they can show they exercised effective control in a continuous and exclusive fashion, as for example traditional hunting and fishing grounds. Where aboriginal title has been established, governments will normally be obliged to obtain the consent of the titleholders to proceed with development; or where consent is not granted, may proceed only subject to the usual conditions by which rights may be overridden: They must have a pressing and substantial purpose, the infringement of title must be the minimum necessary to achieve it, and so on. The mere assertion of title is enough to impose a duty of consultation pending resolution of the claim, in proportion to its legitimacy. As such, it is clear, the decision is also an economic earthquake. At a minimum, it will greatly complicate future resource-development projects, at considerable cost both to their proponents and the wider community. This is not only true in British Columbia, whose territory, in the absence of the kinds of formal treaties that were signed in the rest of the country, is subject to overlapping aboriginal claims adding up to more than 100% of the total, but in the rest of Canada as well. And yet the decision was, by and large, greeted with equanimity. This is quite remarkable, on its face. The decision was hardly a foregone conclusion: Precedent- setting in itself, it overturned a B.C. Court of Appeal ruling, rejecting with it the arguments of both the federal and provincial governments. At a stroke, it has handed native groups enormous bargaining power, not only with regard to specific development proposals, but in the broader negotiations over treaty rights. As a Vancouver lawyer put it, the result will be that reasonably large tracts of (Crown) land in the province will be privatized. I do not say this to be in any way critical. The unanimity of the court lends the decision particular weight in legal terms. And the practical effects may well be as benign to the wider community as they are beneficial to aboriginal communities themselves. Environmentalists should rejoice that what were formerly Crown lands, subject to the usual short-term political and business temptation to over-development, will now be put under more direct ownership, by groups with both a vested interest in preserving them from despoliation and the legal authority to enforce it. Business groups, meanwhile, are already touting the benefits of greater certainty: with clear title and recourse to the courts, aboriginal groups may feel less need to resort to blockades and other forms of obstruction. And yet the broadly favourable reaction to the decision has a simpler explanation, though it is no less remarkable for that. It is, I think, rooted in a basic respect for rights. The majority has interests, we understand, but the minority has rights, and while those rights are not absolute contrary to some of the more excited reactions, provincial and federal law will continue to apply on aboriginal lands they cannot simply be trampled over. They have those rights, what is more, because the majority agreed they should. As esoteric as some of the arguments in this case may seem, the concepts are familiar in other respects. Aboriginal title, as enumerated by the court, is informed in part by common-law notions of possession, adapted to aboriginal traditions; though not alike to fee simple ownership, it resembles it in important ways. But whatever its philosophical foundations, it is a legal reality today, not by virtue of common law or inherent right, but because of the written constitutional law of this country: from the Constitution Act 1982 all the way back to the Royal Proclamation of 1763. It is the authority of the Constitution of Canada that the court invokes to defend aboriginal title, and no other. Common law can be overridden by statute. Inherent rights still need courts to enforce them. It is constitutional entrenchment that gives shape to rights, and it is democratically elected governments that write constitutions. The inconvenience of aboriginal title for governments and developers is one we have taken upon ourselves. All of which raises an interesting question. If we are agreed to constitutionally protect the property rights of some Canadians, why do we shrink from doing the same for others? Recall that the same Constitution that entrenched aboriginal rights, from which we now see derived aboriginal title, declined to protect the right to own property a right that is also founded in common law, and that is often spelled out in statute, but was deemed <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -24- an informative <e-note> by fourarrows@rogers.com 6July 2014 unworthy of constitutional entrenchment. Like aboriginal title, the right to property is not absolute: In the constitutions of other countries, it is typically expressed as the right not to be deprived of ones property except by due process of law, and with just compensation. And yet at the time it was considered expendable. It would be too costly to have to compensate property holders for infringing on their rights. It would be inconvenient. Suppose, then, a government wishes to put a power line through a particular stretch of land. If the land is subject to aboriginal title, all of the rights the court has now delineated kick in. But if it is merely someones property, no such constitutionally guaranteed rights apply. Now that we have defined and accepted aboriginal title as a constitutional right, is it not time this discrepancy was redressed? Supreme Court Sends Tsunami Wave Through Oil, Gas, Mining and Forestry Industries by Gary Park In an epic shift, the Supreme Court of Canada has sent a tsunami wave through oil and natural gas, mining and forestry industries in a ruling that gives First Nations effective control over vast tracts of territory beyond the confines of their defined traditional lands. The 80-page decision applies specifically to drawn-out litigation affecting about 660 square miles in British Columbias central interior occupied by six communities within the Tsilhqotin Nation, but has the potential to reshape resource development across Canada. The unanimous judgment represents a major victory for aboriginal groups, expanding their rights to claim possession of ancestral lands as a result of a semi-nomadic lifestyle and to control those lands permanently. Chief J ustice Beverley McLachlin wrote that the rights conferred by aboriginal title means that governments and others seeking to use the land must obtain the consent of the aboriginal titleholders. The landmark ruling also provides a roadmap for all unresolved land claims across Canada by First Nations seeking to negotiate modern treaties, or to contest their land rights in court. Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it, McLachlin wrote for all eight justices. Other legal and regulatory observers said the ruling has implications not just for future projects but for those to have been approved or are under construction. They note that one paragraph in the judgment might force governments to retroactively cancel approval of a project if it was given the go-ahead before aboriginal title was established, while legislation enacted before title was established might also be rendered inapplicable. Supreme Court of Canada ruling reactivates Okanagan Logging Case by Wendy Stueck Vancouver, 27 June 2014 A court battle over logging rights in B.C.s Okanagan region could become one of the first to reflect the impact of a landmark ruling on aboriginal title from the Supreme Court of Canada. The case, which had been put on hold pending the outcome of a case involving the Tsilhquotin Nation before the Supreme Court of Canada, is expected to get back under way, with a focus not only on land rights but whose laws and systems should prevail. The Okanagan case is now expected to follow. The case began with a logging dispute but soon expanded into a battle over rights and title, with the bands involved saying they had the right to determine how to use the resources on their land. As the court case has dragged on, the disputed logging continued. Despite B.C.s rights admission and despite ongoing litigation, the Secwepemc and Okanagan have been left without a meaningful say or involvement in decisions that impact their land base, lawyers for the First Nation said in a factum filed as part of the Tsilhqotin case. B.C. has authorized large areas within the watersheds for clear cutting. Since the Secwepemc Logging case was stayed as a cost-saving measure, B.C. has authorized logging of 56 per cent of the available timber in the Harper Lake Watershed, it said. In the logging cases, the laws of the Okanagan and Secwepemc were relied upon and they clash with the laws of the province, Louise Mandell, a lawyer who is representing the Okanagan. Its more of a toe-to-toe0 issue about authority and jurisdiction. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -25- an informative <e-note> by fourarrows@rogers.com 6July 2014 Aboriginals play the long game but who wins? 8 by Jeffrey Simpson If you had a plugged nickel or several hundred millions of dollars, among the worst places to invest that money would be across the parts of British Columbia affected by last weeks Supreme Court ruling. It was difficult enough before to get the necessary aboriginal agreement to develop Crown land, or what had been thought to be Crown land. Now, those difficulties have grown immensely with the decision in the Tsilhqotin case. After the previous (and very vague) Delgamuukw ruling (1997), it was thought that aboriginal title applied in areas where groups had resided, and that their claims diminished in strength the farther they got from those settled areas. There was a kind of sliding scale of rights, from something approximating a veto to the need for consultation. This was how the B.C. Court of Appeal saw matters. The Supreme Court, however, has ruled that title applies to all the areas nomadic or semi-nomadic aboriginals moved over before white settlement. A culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is sufficient use to ground aboriginal title, the court said. Which is another way of saying that aboriginals throughout B.C. (and according to their immediate reaction, of aboriginals across Canada) now have a veto over development in any area over which they establish title. Moreover, they have almost a veto over territory they claim, even if the claim has not been found legally valid. In B.C., it had been hoped that modern-day treaties would reconcile the interests of aboriginals and the Crown. That process, regrettably, has been a flop. Only a handful of agreements have been reached. Some aboriginal groups refused to enter any treaty negotiations because they do not recognize Canadas sovereignty. Others lack the capacity to negotiate. Others have become discouraged, perhaps feeling that the government has not been committed, or perhaps feeling that by waiting, the Supreme Court and other courts will do much more for them than any government will. Indeed, if the strategy is to wait on legal rulings, its proven brilliantly wise. Aboriginals tend to play the long game, and by playing it, they have seen their bargaining power rise and rise again, courtesy of the courts. This line of reasoning presumes that aboriginals do indeed want to bargain that is, negotiate agreements that would permit development on what the court has now ruled is their land, to be reconciled with the sovereignty of the Crown. This approach does indeed exist. There are aboriginal groups that do want to negotiate and are prepared to see natural resource development, because where else will wage-economy jobs come from? The trouble is, however, that the hoops placed in front of such development are now so numerous, and the process for getting through them so lengthy and costly, that only the most determined of investors will proceed. This reticence will also apply to projects such as liquefied natural gas, on which the B.C. government has bet some of its economic future and a long-term balanced budget. Then, of course, there are aboriginal groups that want no development on their lands, period. They prefer the traditional ways of living. Natural resource development poses what they consider to be a mortal threat to these ways. The legal strength they now enjoy gives powerful tools to those who are determined to stop all development. To take just one case, those groups that have been opposing the Northern Gateway pipeline will rejoice in the Tsilhqotin ruling. If Northern Gateway wasnt dead before, it surely is now. In the world economy, money (either private or state-controlled) seeks places where returns are reasonable and the local requirements for getting permission to proceed are manageable. Many places around the world are searching for these investments, because no one place has a monopoly on resources. If you were sitting in Beijing, Tokyo, New York or many other places where companies make decisions about where to invest, B.C. just dropped down the list. What foreigners (and Canadians) will see or imagine the hassles to be will cause many to turn away. Maybe this is how British Columbians (aboriginal and other) want the future to unfold. We shall see. Unfortunately, neither Mr. Simpsons editors nor Globe and 8 Mail proofreaders picked up on Mr. Simpsons erroneous use of aboriginals as a plural noun when at best, aboriginal is an adjective. Mr. Simpson repeats the error 10 times in his article. The Canadian Constitution speaks of Aboriginal Peoples, correctly using the term. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -26- an informative <e-note> by fourarrows@rogers.com 6July 2014 The Supreme Courts BC land-title decision? Its more important than you think by Bob Rae 9 Some of the reactions to the Supreme Courts decision in the Tsilhqot'in First Nation case, which requires pipeline projects and similar developments to seek aboriginal approval, are so over the top they cannot go without comment. Nearly forty years ago a case from the Nisga'a community known as Calder made a similar long journey through the courts, and it was there that the Supreme Court (long before the Charter) held that the arguments from both Ottawa and British Columbia that no aboriginal title or claims survived the arrival of European settlement was wrong. The invasion and occupation of the Americas had been seen by imperial powers as a conquest of empty land, whose borders and boundaries were decided by any number of treaties and agreements signed in Europe. In the sixteenth century there was even a theological argument in the Valladolid debate about whether aboriginals were human. The doctrine of "terra nullius" was often invoked to assert the legal fiction that these lands belonged to "no one" before they were "discovered" by white people from Europe. The Calder decision rightly blew those doctrines out of the water, and urged governments, First Nations, and other aboriginal peoples to sort out their relationships on the basis of equality and respect. Since that time, in a variety of ways, governments have made an effort to do this, but it has been slow, halting, begrudging, and only rarely successful. From time to time the Court has had to weigh in, at each juncture being careful, some might say judicious, to point out that there is something called "the honour of the Crown," that governments owe a fiduciary duty to aboriginal peoples, and that they have a responsibility to consult and accommodate. Centuries before Calder, governments often signed treaties, with a variety of motives. The French and English signed "peace and friendship" treaties as a way of ensuring military loyalty. The so-called numbered treaties were more or less imposed between 1875 and 1925 to ensure the land was cleared. Two recent books, J ames Daschuk's Clearing the Plains and J ohn Long's Treaty 9, raise important issues about the moral and legal foundation of these agreements, and their implications for the modern world. More recently, some groundbreaking modern treaties have been negotiated and signed in Quebec, Labrador, Nunavut, Northwest Territories and British Columbia in which more equal and positive relationships have been established with shared powers, revenue distribution, and massive land claims that have recognised aboriginal jurisdiction over large portions of their traditional lands. They have altered the political and economic landscape to better recognise the fact that First Nation and aboriginal governments are real, and have a jurisdiction that needs recognition in fact and in law. But the Court hardly gave the store away. They pointed out that the land has been under the effective control of the Tsihlqot'in all along. Their title is of a collective nature, and exists for perpetuity. Other governments have a stake too, and can override title, but only in a clearly defined and limited way and for purposes that have been given greater clarity by the Court. And in an important statement, the Court said, in paragraph 97 of the decision, that government and businesses worried about an assertion of aboriginal title would be well-advised to seek the consent of the First Nations and aboriginal governments before proceeding with development plans. The policy path is clear. Aboriginal people and their political entities have a valuable part to play in the federation as governments alongside provincial and federal governments. This was agreed to by first ministers in the 1992 Charlottetown Accord. Peoples that have been Bob Rae was Premier of Ontario 1990-1995, a federal Member 9 of Parliament 2008-2013 and leader of the federal Liberal Party 2011-2013. The policy path is clear. Aboriginal people and their political entities have a valuable part to play in the federation as governments alongside provincial and federal governments. This was agreed to by first ministers in the 1992 Charlottetown Accord. Peoples that have been systematically abused, ignored, and sidelined by development, now have a right to jurisdiction over their lands based on history and facts on the ground. Bob Rae on Tsilhqotin <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -27- an informative <e-note> by fourarrows@rogers.com 6July 2014 systematically abused, ignored, and sidelined by development, now have a right to jurisdiction over their lands based on history and facts on the ground. These governments should have the right to decide how they will be used and to share in the benefits that flow from that, as well as the right to be consulted, involved, accommodated, and indeed compensated if they are to be expected to agree to development. Some projects won't happen, but most will. The result will be to begin the end of an aboriginal poverty that is a stain on our nationhood. This process is in fact a win for all Canadians, because it allows us to finally embrace our broader identity, not as conquerors or oppressors, but as a people struggling to become whole. It's the nation building that remains to be done. Of course arguments will continue, because things have been done in the name of development that have been truly destructive. Flooding of vast swathes of land without recognition of both the environmental degradation and the economic costs, mines that have never been properly cleaned up, the pollution of rivers and lakes that has never been paid for: the list goes on. There are still days of reckoning ahead. Will this cost government treasuries? Yes, indeed, but these are bills that must be paid. Those who complain that the courts are not good places to resolve these issues should look in the mirror and ask themselves what they have really done to allow them their speedy and just resolution in another way. Governments have hemmed and hawed, opposed and delayed, and only come to the table when all other opportunities were exhausted. They are running out of excuses. Which is a good thing. Taseko Mines Limited Remains in Denial After Supreme Court Tsilhqotin Decision Williams Lake, BC, 2 July 2014 Amidst the celebrating and joy in the strength of the people, culture and traditions, the Tsilhqotin National Government found itself dealing with which the Tsilhqotin people felt was continuing lack of respect from Taseko Mines Limited of Vancouver about Aboriginal rights and title. The ink had not yet dried on the decision whtn Taseko issued a media statement, thanking the Supreme Court for significantly resolving aboriginal title complication by removing any doubt about aboriginal title in the area. Tsilhqotin Nations court case was about a specific portion of its territory. It was not about its entire territory. But Taseko is saying that because its mine is not within the area dealt with by the Supreme Court, the mine is the only proposed mine in BC that people know for sure is not in an area of aboriginal title. "Now that these matters have been settled, the opportunity exists for a constructive and mutually beneficial way forward for the New Prosperity Project. We welcome and look forward to the opportunity to re-establish a positive dialogue with the six Tsilhqot'in bands represented by the Tsilhqot'in National Government, about New Prosperity and its potential to assist them with advancing community priorities," said Russell Hallbauer, Taseko president. . Chief J oe Alphonse, Tribal Chairman of the Tsilhqotin Nation, shot back: Its time Taseko finally started showing respect for our people. The project has been rejected twice because of the serious negative impacts that two independent panels have found. It is arrogant to still attempt to push this project through. Prosperity Mine is a dead issue. I would suggest they make significant changes to their companys leadership if they ever want to see progress on any other project. Taseko Mines has filed for two judicial reviews of the federal decision, challenging the process and the information on which the government based its decision. Those processes remain underway. Chilcotin River <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -28- an informative <e-note> by fourarrows@rogers.com 6July 2014 Adversarial approach with Tsilqhot'in wrongheaded by Will Braun There were surely no high-fives in the Prime Ministers Office when the Supreme Court issued its landmark decision on aboriginal title. The Prime Minister didn't don a traditional head-dress as he did at a 2011 ceremony in Alberta or stand along side aboriginal elders as he did in 2008 when he apologized for residential schools abuses. In this supposed era of reconciliation, the federal government sent lawyers to court to line up against the Tsilqhot'in people. If Ottawa had its way, the court would have denied the Tsilqhot'in title to their traditional lands, sent them back to court and entrenched the status quo. Why did the feds fight the case? And is their vision of Canada built on fighting every other First Nation that follows the Tsilqhot'in lead? Government lawyers who first opposed the Tsilqhot'in claim to title in 1983 when the case began argued the Tsilqhot'in have rights to hunt and fish in the 1,750-sq km area of B.C. in question but should not be granted title to it. Title would essentially convert the area from Crown land to land owned collectively by the Tsilqhot'in. Federal lawyers argued that use of the area in question should be determined through negotiations. They argued the claim for title was flawed and the Tsilqhot'in could come back to court for a "properly pleaded" case about title to specific sites rather than a large tract of land. Presumably Ottawa would have fought that case as well. The resulting win for aboriginal people was taken as a loss by the federal Conservatives. That is unfortunate. The government could have said Canada is a huge nation of tremendous opportunity and this opportunity should be shared generously with aboriginal people. It could have said that without a land base, aboriginal people will be doomed to live in a state of poverty and dependence that constitutes a national shame. Instead of forcing a gruelling legal battle, it could have collaborated in a process of determining the area to which aboriginal title was justified and supporting appropriate development. Such a process would set a precedent that would have to be followed elsewhere. Clearly, the prospect would make government, and many Canadians, nervous. Understandably so. Land title remains undetermined or questionable in most of B.C., roughly 40% of Quebec, points east of Quebec and possibly the 2/3 of Northern Ontario covered by the dubious J ames Bay Treaty. The ruling may also bolster calls for revenue sharing from First Nations that have signed treaties. As one aboriginal leader noted, "a rising tide carries all boats." All of this would come at a cost. It would create a monumental jostle for land rights and ultimately it would mean some resource-development projects would not happen or would happen on a less ambitious scale than they might have otherwise. But the failure to grant aboriginal peoples the dignity and opportunity of a land base also comes at a tremendous cost economic, social and moral. It is the cost of an entirely unacceptable status quo. Change is required. That change can come through arduous, adversarial court battles or through a more cooperative nation-building process. Aboriginal rights are complicated and often poorly understood by Canadians, but behind the intricate issues of rights, title and treaties is the essential notion of sharing. The 147-year-old arrangement known as Canada has worked better for non-aboriginal people than aboriginal. Those of us on the settler side have not shared well. We need to learn to share. Sure, we may have to give up some things along the way -- though nothing as drastic as some people predict but in the process aboriginal people would gain a measure of dignity and self-reliance, and the rest of us would gain a measure of honour, and perhaps a somewhat eased national conscience. We are all neighbours. We dwell in a land of exceptional abundance. There is plenty to go around. As non-aboriginal people we need not fear and we need not fight. We made the unthinkable mistake of taking First Nations' children; maybe we should let them have a land base. But the failure to grant aboriginal peoples the dignity and opportunity of a land base also comes at a tremendous cost economic, social and moral. It is the cost of an entirely unacceptable status quo. Change is required. That change can come through arduous, adversarial court battles or through a more cooperative nation-building process. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -29- an informative <e-note> by fourarrows@rogers.com 6July 2014 by Thomas Walkom Supreme Court ruling puts First Nations in drivers seat on pipelines When Canada's Supreme Court released its sweeping judgment on aboriginal rights last Thursday, pipeline opponents were jubilant. "There is no blank cheque for the Northern Gateway project," Council of Canadians chair Maude Barlow said, referring to a proposed Enbridge pipeline that would bring oil from Alberta's oilsands to the British Columbia coast. Grand Chief Stewart Phillip of the B.C. Union of Chiefs predicted the decision would affect Kinder Morgan's scheme to expand its Trans Mountain pipeline system, which moves oil across the Rockies to Vancouver. Others said the ruling could scupper TransCanada Corp.'s plan to build the so-called Energy East pipeline from Alberta to New Brunswick. But the unanimous court decision is a subtle one. First, it doesn't exclude aboriginal lands from provincial laws. Provinces are free to make laws about matters such as oil drilling and forestry. But these laws must be applied to lands under aboriginal title in a manner that protects native rights. For instance, provincial governments can't unilaterally let forest companies clear-cut native-owned land. Second, the decision does not give First Nations a veto over government-authorized projects that affect their lands. In fact, the eight justices ruled that for purposes of "building up infrastructure" or "general economic development," federal and provincial governments can override the wishes of First Nations even those that possess clear aboriginal title to their territory through treaties or court decisions. But governments can do so only if they adhere to three principles. First, they have to consult with the First Nation in a meaningful way, in an effort to win its consent. Second, they must have a "compelling and substantial public purpose" for overriding a First Nation if that consent is not obtained. Third, they must maintain their constitutional duty to protect First Nations. In particular, they must act in a manner that protects aboriginal territory for future generations. In areas where First Nations have not obtained clear aboriginal title (and that involves most of B.C., as well as a big chunk of land including Ottawa in eastern Ontario), governments have more leeway for action. All they must do is consult seriously. But the court ruled that even here, governments must be careful. If, for instance, Ottawa approves a project in an area that later is determined to come under aboriginal title, the project may have to be dismantled. Potential pipeline investors might want to keep that particular part of the ruling in mind. What does this all mean in practice? The experts are divided. Indeed, some business groups have welcomed the decision, saying it clarifies the meaning of aboriginal title which is true. But what also seems to be true is that First Nations are now in the driver's seat when it comes to any economic development involving lands that are already aboriginal or could plausibly be labelled as such in the future. That's a big chunk of the country, particularly in the resource-rich north. The Tsilhqotin decision makes clear that none of this can happen easily unless First Nations are willing. This doesn't mean that Canada's pipeline projects are dead. But it does mean that those who want them including governments are going to have to spend a lot more time and money wooing aboriginal people. For Prime Minister Stephen Harper's Conservatives, who have taken a tough-love approach to First Nation issues, this would be quite a switch. First Nations are now in the driver's seat when it comes to any economic development involving lands that are already aboriginal or could plausibly be labelled as such in the future. All three major parties in Ottawa are focusing on the resource economy as Canada's engine of growth. The Tsilhqotin decision makes clear that none of this can happen easily unless First Nations are willing. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -30- an informative <e-note> by fourarrows@rogers.com 6July 2014 Another View: Life after the Tsilhqot-in decision by Tom Fletcher 10 tfletcher@blackpress.ca Victoria, 2 July 2014: The Supreme Court of Canadas landmark decision on aboriginal title held by the Tsilhqotin 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 Tsilhqotin decision appears to uphold the key finding of the 2007 trial, that 1,700 sq km of the Nemiah Valley west of Williams Lake are essentially owned by the people who occupied it hundreds if not thousands of years ago. Its not quite ownership. Federal and provincial jurisdiction still applies, and their authority varies with the strength of the aboriginal title claim. Chief J ustice Beverley McLachlin ruled that the province overstepped its authority by issuing logging permits in the valley in 1983. She 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 who rejected B.C.s position that the economic value of the timber to the province overrode the then-vaguely defined aboriginal title. Heres Chief J ustice McLachlins 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. Thats 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 Tsilhqotin 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 Tsilhqotin 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 Tsilhqotin, 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 Tsilhqotin 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 10 Press. 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. Tsilhqotin Decision, 2014 <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -31- an informative <e-note> by fourarrows@rogers.com 6July 2014 Editorial by John Cumming In Tsilhqot'in decision, 'duty to consult' becomes 'requirement for consent' As everyone involved in natural resource extraction in B.C. is now well aware, the J une 26 decision by the Supreme Court of Canada declaring that the small Tsilhqotin First Nation holds aboriginal title over 1,750 sq. km in central B.C. is a precedent-setter that effectively remakes the regulatory environment in B.C., and has ramifications across Canada where aboriginal land claims are unsettled. In the case of Tsilhqotin Nation v. British Columbia, the vast, sparsely populated stretch of land in question west of Williams Lake is no longer Crown land but title land held communally by the Tsilhqotin First Nation, which has the right to exclusive use and occupation of the land, and the right to its economic benefits. For the first time, the decision clarifies how a nomadic or semi-nomadic aboriginal group such as the Tsilhqotin can establish title to land they occupied before contact with Western colonialists and continue to use to the present day or "sufficient, continuous and exclusive occupation" in the parlance of the court. But determining the geographical boundaries of title land is by no means a quick process: just the trial portion of this 25-year-long legal process lasted 339 days in court, spanning almost five years. As many commentators have correctly pointed out, this Supreme Court decision means that the old regulatory era of provincial and federal governments only having a vague "duty to consult" aboriginal groups with respect to development on "traditional land" has been replaced with a "requirement for consent" by the governments from an aboriginal group when it comes to "title land." And make no mistake: this decision relates to who controls and benefits from the economic development of land, and is not a more narrow question of aboriginal rights with respect to fishing or hunting, etc. Equally significant, this decision also means any economic development of the communal title land must not restrict future generations of Tsilhqotin from benefiting from the land. Further, the Crown now has only a limited ability in situations of "compelling and substantial public purpose" to authorize economic development on title land without the First Nations consent. In todays Canada, its hard to think of a scenario short of mobilization for war or major environmental devastation that would warrant such an override of First Nation consent. The reaction of the provincial mining associations to the Tsilhqotin decision was cautious, and the wording of their official statements still reflexively returned to the now-outdated "duty to consult" phraseology. The Mining Association of B.C. said it is "reviewing the decision" but that it "provides certainty and clarification around aboriginal title and the application of provincial law and regulation on the land base." The Association for Mineral Exploration B.C. stated that it is "a complex and precedent-setting case that will require further review," and that "we at AME BC know that the path forward is for the federal and provincial governments to continue consulting with the Tsilhqotin Nation." For now, no one knows exactly what mineral deposits, proposed mine developments and operating mines in B.C. coincide with or will someday coincide with what aboriginal title claims, and this uncertainty can only be resolved on a case-by-case basis over many years. For First Nation groups living on non-treaty lands in B.C., theres now every incentive to push hard to obtain title over land where they have had "sufficient, continuous and exclusive" occupation since before European sovereignty. In the meantime, its sure to put a chill on new investment in mineral exploration and mine development in the province, and in other regions of Canada where treaties are not in place with aboriginal groups, and aboriginal title claims are strong. 1915 - 2014 The Northern Miner. All Rights Reserved. The old regulatory era of provincial and federal governments only having a vague "duty to consult" aboriginal groups with respect to development on "traditional land" has been replaced with a "requirement for consent" by the governments from an aboriginal group when it comes to "title land." And make no mistake: this decision relates to who controls and benefits from the economic development of land, and is not a more narrow question of aboriginal rights with respect to fishing or hunting, etc. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -32- an informative <e-note> by fourarrows@rogers.com 6July 2014 Maybe now First Nations have country's attention Aboriginal participation in resource development on their traditional lands is now a right By Ken Coates 11 The Tsilhqot'in decision issued last week by the Supreme Court of Canada is an absolute game-changer. With unexpected clarity and decisiveness, the Supreme Court recognized the Tsilhqot'in's Aboriginal title to their traditional lands and directed governments on how they must proceed with any future development on non-treaty lands. Even the Tsilqot'in, who clearly hoped for the best from the courts, seemed gobsmacked by the strength of the judgment in their favour. This decision is a long time coming. In 1973, the Nisga'a from the Nass River valley in northwest British Columbia had their day in court. They claimed Aboriginal title to their traditional territories and wanted their land rights recognized by the courts. The Nisga'a lost the case, in a rare 3-3-1 split vote, but they had made their point. Prime Minister Pierre Trudeau, previously unimpressed with Aboriginal claims, realized that the Government of Canada could well lose the next such legal challenge. The modern land claims era had started. But it has been a hard road. Some land claims agreements were signed, particularly in the Yukon, Northwest Territories and Nunavut, and the Nisga'a finally got their settlement. But most of British Columbia remains non-treaty land, and several Yukon and NWT First Nations and Maritime First Nations have not yet signed land surrender treaties. Even without full legal backing, many First Nations - more than most Canadians realize - worked with governments and corporations to secure appropriate resource development agreements. Others, including the Tsilhqot'in, pushed back and used the courts to clarify their rights and responsibilities. The Supreme Court decision on the William case is the capstone to that process. There will be a great deal of talk about the Tsilhqot'in decision in the next few weeks and months. The Tsilhqot'in won, and they won big. Their Aboriginal rights to their traditional territories have been confirmed. The basis for negotiations in British Columbia and elsewhere has shifted. First Nations have more legal authority than in the past and, like anyone else in a similar situation, they will use it to their benefit. The Aboriginal power as spelled out in the William judgment is not absolute, however. Resource development can proceed, subject to the restated requirements to consult and accommodate. The decision puts a higher standard on Government to demonstrate a compelling provincial or national interest in a specific project - and no doubt governments and First Nations will be back in court to define the collective interest more precisely. To this point, most Canadians have viewed First Nations' interests in resource development as a minor irritant and occasionally, as with the Northern Gateway project, a major impediment. Indeed, there has been growing concern expressed by non-Aboriginal people about the steady increase in Aboriginal rights, a grumble that is likely to get louder in the days to come. However, there are more important lessons here. That the Tsilhqot'in turned to the courts showed their ultimate faith in Canada and their commitment to a peaceful resolution to their outstanding claims. The Supreme Court has vindicated that confidence. Remember, however, that this decision recognizes Aboriginal rights under British and Canadian law. It applies a British legal standard to the First Nations' claim. It does not represent an assertion of Indigenous legal or political concepts, much as the Tsilhqot'in would have liked that. In short form, the Supreme Court has declared that, in order to honour British and Canadian law, governments have to work differently and more proactively with First Nations. Importantly, the William decision compels governments and companies to work in a way that in fact has already become accepted practice. Resource companies realize that they need to work with Aboriginal people if they want their projects to succeed and they have become increasingly adept at creating viable partnerships and collaborations. Governments, too, understand that the resource development world has been changing rapidly in recent years and that new arrangements are required. Canadians have to realize, through this decision, that the country has turned a page in its history. Aboriginal people have been assured, under British and Canadian law, a proper and substantial place in the development of natural resources. Their participation is a matter of right, not corporate generosity or government benevolence. Ken Coates is Canada Research Chair in regional innovation at 11 the J ohnson-Shoyama Graduate School of Public Policy in Saskatchewan, and a senior fellow at the Macdonald-Laurier Institute. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -33- an informative <e-note> by fourarrows@rogers.com 6July 2014 Q&A: How the Tsilqotin Might Affect You By Rob Shaw rshaw@vancouversun.com, Vancouver Sun A historic Supreme Court of Canada decision on the land title rights of the Tsilhqotin First Nation has left aboriginal leaders, governments and legal experts analyzing the ramifications of what some have called the most important court ruling on First Nations land rights in the provinces history. Here are some questions and answers about the court decision: Q: What does this mean for houses or businesses that are on land that might be part of future First Nations land claims? A: This decision has no effect on private property rights, said Dominique Nouvet, an aboriginal lawyer at Woodward & Company in Victoria that acted on behalf of the Tsilhqotin at the Supreme Court. The few homes and business in the lands near Alexis Creek that the Tsilhqotin won title over were deliberately excluded from the court case. The high court didnt specifically address the issue, but it may form part of future rulings for land title claims in urban areas. Whether it would trump private land interests is a question we dont know the answer to, said Rosanne Kyle, a Vancouver lawyer who practices aboriginal and environmental law. Regardless, courts have vast discretion to impose remedies on rulings, so that a judge could limit the impact of land title claims on private landowners, or order compensation. Q: What does the court ruling mean for the treaty process between First Nations and the provincial and federal governments? A: Experts are split on the issue, with some saying it will jump-start the slow-moving and often-criticized treaty process, while others admitting theres the potential First Nations could sidestep that log-jammed process in favour of land title claims. Treaties provide much more certainty over self-governance, legal issues and on-the-ground management than a land title claim, said Thomas Isaac, who leads the aboriginal law group for law firm Osler, Hoskin & Harcourt LLP and is a former chief treaty negotiator for the B.C. government. The good thing about a treaty is that you know what youve signed for all parties involved, he said. Its not actually clear what aboriginal title will translate into, at least on Day 1. . . . That means much of B.C.s Crown land is in play for First Nations that want to pursue title claims. Nothing changes immediately, he said, and for anything to happen on the land, first an aboriginal group has to win a title claim or sign a treaty. Other say the Supreme Court decision is the latest in several court rulings that clearly tell the B.C. and federal governments to do a better job of treaty negotiations and reconciliation. It would be a complete travesty if government forced every First Nation to fight this out in the court, said Nouvet. Its a waste of everybodys money. Q: How does all of this affect Crown land owned by the government on behalf of the B.C. public? A: The court reconfirmed an existing principle that has been established some time ago, that aboriginal title predates Crown title, said David Bursey, who leads the aboriginal law group in the firm Bull Housser. The implications of this decision are dramatic and will affect land and resource development throughout the province. . . British Columbia must be very thoughtful in its reaction to this, and whatever its answer is it has to be sustainable over the long term, said Bursey. The issue isnt going away and there wont be a quick fix to this. B.C. is now limited in what action it can take on Crown land whether logging, mining or other resource extraction when that land is subject to a strong title claim by a nearby First Nation, Nouvet said. The stronger the claim, the more consultation and accommodation is required by government, the court ruled. If a First Nation has a strong aboriginal title claim and the government is contemplating approving a mine that would wreck an area, I would say under this decision that is not allowed, said Nouvet. Q: What about Crown land already being used for a purpose? Or even a provincial park? A: Theres nothing stopping a First Nation from claiming title over Crown land currently being used, or over a park. In theory parks are up for grabs in an aboriginal title claim, said Nouvet. The First Nation, if it wins, would get to decide how they want to use the land, and the First Nation would not be confined to keeping it as a park. But the high court also reconfirmed that there are some land uses that are so important to the larger public good such as power generation and environmental protection that a government can justifiably infringe upon an aboriginal claim and force a project, if it follows the right process, including engagement and accommodation. The court ruled B.C. laws generally apply to land under <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -34- an informative <e-note> by fourarrows@rogers.com 6July 2014 aboriginal title, but some things, like timber, are now the property of the First Nation. oing forward, the government will have to consult with First Nations before renewing logging or other leases on Crown land that could be subject to a claim, said Nouvet. Q: If a First Nation has already signed off on using land for a project, can it come back and cancel that project after winning land title? A: It was specifically addressed by the court, but generally legal experts believe if a First Nation has already given informed consent to a project, such as a mine or pipeline, then thats binding. However, the Supreme Court also said governments may have to revisit approvals for activities they have already allowed on land if there wasnt sufficient accommodation to the First Nation before it won title. Chiefs of Ontario Applaud Tsilhqotin Ruling Thanks to Kathryn Blaze Carlson, Globe and Mail Thunder Bay, Ontario, 27 June 2014 Ontario Regional Chief Stan Beardy predicts the Tsilhqotin ruling will have implications for major projects such as the Ring of Fire and two pipelines. We are optimistic that this will have a positive impact on the Keewatin case, he said, referring to another case which has been heard by the Supreme Court of Canada which is now considering its decision. That case deals with a challenge to Ontarios right to permit industrial logging on Grassy Narrows First Nation traditional lands. Bob Rae, negotiator for First Nations involved in the massive Ring of Fire mining project, says the Treaty 9 First Nations he represents view the Treaty as an agreement to share their land with the Crown, not surrender it. We fully expect the governments of Ontario and Canada to respect the spirit and broader meaning of the Treaty, he said in a call from the remote community of Neskantaga in the Matawa area. The Tsilhqotin ruling is that if there was not a surrender by Treaty, governments and companies must obtain consent from aboriginal title holders for use of the land/ Even where a court or government has not recognized title, there must be consultation and where appropriate accommodation of aboriginal and treaty rights.
A Note From Noel Lyon Once Again: The Old Rules Renounced What a great day it was when the William judgment came down! I read the whole thing once it was on the internet and found it hard to believe that this is the same court that once joined in on the general denial that the savages could even be worthy of a culture. It's a fine piece of legal reasoning in the context of history as it actually happened. I think the part that will be difficult or impossible for the longtime deniers to grasp is that the land claimed is no longer Crown land. The imperial brainwashing was so complete that these poor devils can only shake their heads in disbelief. Not only is it a great day for the Court but an even greater day for those who fought the good fight over decades, whose courage and determination have finally prevailed. Many of them did not live to savour their amazing victory. I think of all those who endured persecution for asserting their fundamental rights and those who took their claims through the courts against what looked like impossible odds. Now those in power, who must take remedial action, can if they choose learn much about truth, respect and serious diplomacy from the peoples they have dismissed and denied for so long. Noel Lyon, Kanata Day 2014 Noel Lyon is professor emeritus, College of Law, Queens University, with over 50 years of advocacy for justice for indigenous peoples. The Supreme Court of Canada quotes him in Sparrow: . . . s. 35 is not just a codification of the case law on aboriginal rights that had accumulated by 1982. S. 35 calls for a just settlement for aboriginal peoples. It renounces the old rules of the game under which the Crown established courts of law and denied those courts the authority to question sovereign claims made by the Crown. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -35- an informative <e-note> by fourarrows@rogers.com 6July 2014 Title decision validates the Work of Justice David Vickers by Les Leyne lleyne@timescolonist.com / Times Colonist Pat Vickers daughter phoned her at 6:30 Thursday morning and told her to turn on the TV. She did, and they both started crying. They were watching the beginning of hours of coverage of the Supreme Court of Canada decision on what the words aboriginal title mean. It had special resonance for them, because it was clear from the start that the judgment amounts to a vindication for Vickers late husband, David. He was the B.C. Supreme Court judge who immersed himself in the Tsilhqotin Nations claim for ownership of a remote chunk of Chilcotin wilderness. (Its wilderness because about 100 native people blocked the loggers more than 20 years ago, which started the case.) After delving exhaustively into every aspect of the aboriginal existence and history in the region, he decided the Tsilhqotin had proven rights to much of the Nemiah Valley and those rights were being violated by government logging plans. The decision stopped short of granting title outright because of a technicality relating to the all or nothing approach from the plaintiffs. But his 458-page judgment in 2007 joined the list of momentous aboriginal title decisions. It was appealed for various reasons and five years later the B.C. Court of Appeals scaled back the import of the ruling. 12 The case progressed from there to the Supreme Court of Canada last winter. Thursdays decision was the word from on high about the case. And the word is mostly a broad endorsement of Vickers interpretation of the case. The trial judge was correct, the high court said. Absent demonstrated error, his findings should not be disturbed. It was good news for First Nations, but they were also sweet words for the Vickers family to hear. We are just over the moon, Pat Vickers said. Delighted. She recalled the phenomenal amount of work he put into the case. It arrived in his Victoria courtroom in 2002 and proceeded over 339 days during the next five years. It cost a staggering amount of money, at least $30 million, all of it funded by governments. Vickers moved proceedings up to the Chilcotin for several weeks early on to get a feel for the territory and hear testimony from elders. Some witnesses spoke in their original language, so translators were brought in. Pat accompanied him and the two would go for walks during breaks. She recalled meeting children who were fascinated by all the buttons on the vest he wore under his judicial robes. When arguments finally concluded, Vickers was desperate to get the job done, Pat recalled. So he sat down and reviewed tens of thousands of pages of testimony and wrote his judgment in a period of several months, much faster than it would normally take. This is not a usual judgment but, rather, part of a larger process of reconciliation between Tsilhqotin people and the broader Canadian society, he noted in the verdict. I have departed from the usual practice and expressed my views on some issues that might not have been addressed but for the nature of these proceedings. He invited the parties to use the opinion in the negotiations that must follow. Note must. One of the thrusts of the decision, like others before, is that negotiations and compromises are the only way forward through the aboriginal title issue. My hope is that this judgment will shine new light on the path of reconciliation that lies ahead. Even the appeal court judge who reversed some of his findings paid tribute to the work he put into the case. One is struck by the incredible patience and conscientious- ness shown by the trial judge, said the judge. Its a tribute to [Vickers] diligence and intellect that this case presents a suitable opportunity for this court to address the The Vickers decision is at Tsilhqot'in Nation v. British 12 Columbia, 2007 BCSC 1700 (CanLII) http://canlii.ca/t/1whct , Pat and Justice David Vickers, Camosun Foundation Award <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -36- an informative <e-note> by fourarrows@rogers.com 6July 2014 complex issues that go to the heart of aboriginal title. Vickers retired soon after delivering his opus, and Pat recalled him half-jokingly predict that hed probably be gone by the time it made its way to the Supreme Court. He died at age 75, two years after rendering the verdict of his career. But Pat Vickers assured me: Davids spirit is soaring all over the place today. 13 Professor Kent McNeil of Osgoode Hall Law School explains the contribution of Justice David Vickers J ustice Vickers explanation for providing a lengthy obiter opinion on title is revealing. He devoted 18 pages of his judgment to reconciliation, admitting that, in the adversarial milieu of the courtroom, judges are ill equipped to effect a reconciliation of competing interests. Reconciliation, he observed, must be achieved in a treaty negotiation process. What, then, is the role of the courts? J ustice Vickers apparently thought that his factual findings and non-binding legal conclusions would induce the parties to bargain in good faith and reach reasonable accommodations. He clearly regarded the positions of B.C. and Canada on aboriginal title as the major obstacle to honourable negotiations. He said their postage stamp approach could not be allowed to pervade and inhibit genuine negotiations. He also blamed governments at all levels, for successive generations, for having failed in the discharge of their constitutional obligations. These failures included B.C.s wrongful denial of aboriginal land rights, and Canadas refusal to accept its constitutional responsibilities and negotiate treaties in B.C. The constitutional problem stemmed from the provinces assumption from the time it joined Canada in 1871 to the 1990s that no aboriginal title existed in B.C., and so all unpatented lands that were not federal belonged to the province. Not so, said J ustice Vickers, as Delgamuukw decided that aboriginal title is proprietary and includes exclusive rights of occupation and use. \ Moreover, aboriginal title lands are under exclusive federal jurisdiction as Lands reserved for the Indians (s.91(24) of the Constitution Act, 1867). So, besides lacking a present beneficial interest, the province has not had jurisdiction over these lands since 1871. Relying again on Delgamuukw and the division-of-powers, J ustice Vickers concluded that B.C. could not extinguish aboriginal title by granting interests to third parties. Although he avoided any conclusions on the effect of these grants, it follows from his analysis that grants of interests inconsistent with aboriginal title would be invalid. This means that these grantees would have entered as trespassers. Also, the grantees would not be able to rely on provincial statutes of limitation because, as he observed, those statutes would not apply for the same division-of-powers reasons. No wonder J ustice Vickers has thrown this controversy back to the governments that created it! But how might aboriginal title and inconsistent private property interests be reconciled in treaty negotiations? I believe this would involve seeking a middle road toward reconciliation and avoiding one-sided approaches that would, as J ustice Vickers pointed out, run the risk of rubbing salt into open wounds. The first issue is that provincial fee simple grants of aboriginal title land could not have extinguished aboriginal title and should have been void. But what if the grantees entered believing they had good title, made substantial improvements, and have remained in peaceful possession ever since? Arguably, dispossessing them today would replace one injustice with another. The aboriginal titleholders are nonetheless entitled to a remedy for the wrongful taking of their lands. Since it would be unjust in the circumstances to return the lands themselves, the real wrongdoers Canada and B.C. should provide replacement lands or monetary payments as compensation. In other instances, the province has wrongfully granted interests less than fee simple estates, such as mining and lumbering interests, in aboriginal title lands. Where resource extraction has terminated and these interests have expired, it would be appropriate for the wrongdoers again, Canada and B.C. to compensate the aboriginal titleholders for the value of the resources (which, according to Delgamuukw, belonged to the aboriginal titleholders), and for the damage done to their lands. In situations where provincially authorized mining, forestry, etc. are continuing on aboriginal title land, Canada and B.C. should pay compensation for the value of the resources taken and the damage already done. But these activities should not continue without the consent of the aboriginal titleholders, who, as determined in Delgamuukw, have the right to manage their lands and make decisions about the uses to which they are put. As J ustice Vickers obituary appears at 13 http://www.theglobeandmail.com/news/british-columbia/the-best- premier-bc-never-had/article4356952/ <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -37- an informative <e-note> by fourarrows@rogers.com 6July 2014 these management rights are on-going, future resource extraction should be subject to aboriginal control. Moreover, a share of the benefits should go to the aboriginal titleholders who own the resources. The federal and provincial governments have no beneficial interest in these resources, and so should not share in the revenues they produce. Some people may balk at the cost of compensating aboriginal titleholders for past wrongs. But compensation is generally paid to property owners when their lands and resources are taken by governments, even when this is lawfully done for public purposes under statutory authority. It would be highly discriminatory for aboriginal titleholders to be treated less favourably, especially when their lands were taken in violation of the Canadian Constitution. Given that these wrongs were committed by governments acting on behalf of Canadians and B.C. residents, we should all bear the costs. In Tsilhqotin Nation, J ustice Vickers said the central question is whether Canadians can meet the challenges of decolonization. I think paying compensation for the wrongful taking of aboriginal lands and resources would be a significant step in this direction. WHAT LAWYERS SAY ABOUT THE TSHILQOTIN DECISION BRUCE McIVOR <bmcivor@firstpeopleslaw.com> FIRST PEOPLES LAW Suite 300, 111 Water Street Vancouver, British Columbia V6B 1A7 Phone: 604-685-4240 Email: enquire@firstpeopleslaw.com The full text of this article is at <http://www.firstpeopleslaw.com/index/articles/158.php>
Welcome to the Post-Denial Period of Indigenous Rights Canadians awoke this morning to the post-denial period of Indigenous rights. Like any new day, promise and hope abounds. What tomorrow will bring is up to all Canadians, Indigenous and non-Indigenous alike. But first, it is time to take stock. The dots-on-a-map theory of Aboriginal title is dead. The Supreme Court confirmed that Aboriginal title can include territorial claims and that the occupation requirement for proof is not limited to intensive, regular use of small geographical sites (e.g. fishing spots and buffalo jumps). Rather, regular use of large swaths of land for traditional practices and activities (e.g. hunting, trapping and fishing) when coupled with exclusivity may be sufficient to ground a claim for Aboriginal title. The implications are profound. Governments myopic focus on dots-on-a-map is now indefensible. Indigenous people are now able to seek recognition of their territorial claims to Aboriginal title. For those, like the Tsilhqotin, who are ultimately successful, the change will be dramatic. Subject to justifiable infringements, they will enjoy the right to exclusively use and occupy their Aboriginal title lands, to benefit from their lands and to decide on how their lands will be managed. In other words, they will, in large part, enjoy the rights and privileges of their ancestors. Over a century of denial will be put to rest. The Duty to Consult The duty to consult has new life. The possibility of territorial claims for Aboriginal title based on traditional activities will shift the duty to consult equation in favour of Indigenous people. Government and industry will have to step up and acknowledge the new reality ostriches will be playing a high-risk game. The Court in Tsilhqotin confirmed that a failure to meaningfully consult and accommodate Indigenous people prior to a successful claim for Aboriginal title will leave government and industry exposed to cancelled authorizations and claims for damages. As the Court specifically stated, there is a simple and effective way for government and industry to avoid the uncertainty and risk they now clearly face Obtain the consent of Indigenous people before you mess with their lands and resources. Provincial Laws The Provinces have assumed a heavy burden. When the provinces awaken to the reality of what it takes to justify <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -38- an informative <e-note> by fourarrows@rogers.com 6July 2014 an infringement, they may well regret their success on this issue. In permitting provincial laws to apply to Aboriginal title lands the Court made new law and saddled the provinces with hefty legal obligations. The Court clarified that when Indigenous people succeed in confirming their Aboriginal title a province will not simply be able to apply their laws through box-ticking consultation. They will be subject to the much more onerous burden of obtaining consent or justifying infringements. Treaties The jig is up. New government mandates for the British Columbia treaty process are necessary. It is hard to imagine why Indigenous people would join or continue to participate in the current process with its pre-determined, non-negotiable government limitations when the reality and promise of Aboriginal title has been confirmed. Those who assume that Tsilhqotin will not affect Treaty people are mistaken. For Indigenous people with pre-Confederation treaties (e.g. the Douglas treaties on Vancouver Island and the peace-and-friendship treaties in the Maritimes) the implications are obvious. Their claims to Aboriginal title can now be pursued with renewed confidence. Their demands that government obtain their consent before exploiting their lands have new credibility. We honour those, both Indigenous and non-Indigenous, who did so much in the long struggle to have Aboriginal title recognized and confirmed but did not live to see their dream realized. Thanks are owed to the current generation who inherited the weight of their ancestors efforts and did not shrink from the responsibility. And a recommitment is owed to future generations to ensure that this remarkable success is not undermined by complacency. The Supreme Court has handed all Indigenous people a mighty victory now is the time to see that the promise is realized. JACK WOODWARD jack@woodwardandcompany.com WOODWARD & COMPANY LLP http://woodwardandcompany.com/ 2nd Floor, 844 Courtney Street Victoria, BC V8W 1C4 Phone: (250) 383-2356 After a courageous struggle, a small Tsilhqot'in First Nation that took on the governments of Canada and British Columbia to protect their land and way of life has been victorious at the Supreme Court of Canada. Today, the court upheld the trial findings of the late J ustice David Vickers, and granted the very first declaration of Aboriginal title in Canada. "For 156 years, since the colony of British Columbia was formed, the government has assumed that it owns the land, ignoring the rights of Indigenous peoples," said J ack Woodward, lawyer for the Plaintiff. "In today's judgment, the Supreme Court declared that First Nations continue to own their lands. The denial of aboriginal land rights, and its violent and grim social results, can no longer continue in light of this ground-breaking ruling." This decision changes the legal landscape in British Columbia for industrial project development, whether its mines, pipelines, or LNG; proponents now have a clearer sense of the jurisdictional power of First Nations and their ability to protect their lands from unsustainable development, noted Woodward. Woodward & Company LLP would like to say sechanalyagh! to the Tsilhqot'in Elders and all the Tsilhqot'in people who worked so hard for so many years to make this outcome possible. We would also like to thank all the organizations and individuals whose personal sacrifices and support over this 25-year journey were indispensible. This could not have happened without the efforts and dedication of so many, including the years of effort by all the Plaintiff-side members of the Aboriginal Law bar and the courageous trial decision of the late J ustice David Vickers; we raise our hands to you! Thank you to our friends and families for their love, support and sacrifices. Thank you to the Songhees and Lekwungen people on whose lands we live and work. And, as ever, as always, to our fearless leader J ack, whose courage and unsinkable belief that justice will always prevail is our guiding light. In early 2008, after BC Supreme Court J ustice David Vickers initial ruling in favour of the Tsilhqotin First Nation, Damien Gillis interviewed the plaintiffs lead lawyer, J ack Woodward at his office in Victoria. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -39- an informative <e-note> by fourarrows@rogers.com 6July 2014 In the interview, Woodward details the case itself, the intersection of aboriginal title and rights with BCs fascinating colonial history, and the implications of the decision on the future of resource development in the province and across the country everything from mines to hydroelectric development and oil and gas. Nearly seven years later, Woodwards comments prove every bit as insightful and relevant, with the Tsilhqotin victory at the Supreme Court of Canada aptly called a game-changer for resource development in Canada. See the interview on http://commonsensecanadian.ca/VIDEO-detail/lead-lawyer -explains-tsilhqotin-case-aboriginal-title-rights/ ROBERT JANES, ROBERT FREEDMAN, ROSANNE KYLE, KAREY BROOKS JFK LAW CORP 816 1175 Douglas Street Vancouver, BC V6B 5L1 Tel: 604-687-0549 JFK Law CorpVictoria 340 - 1122 Mainland St., Victoria, B.C. V8W 2E1 Tel: 250-405-3460. www.jfklaw.ca Robert J. M. Janes and Karey Brooks acted for interveners Temexw Treaty Association in Tsilqotin. Supreme Court of Canada Releases Landmark Aboriginal Title Decision On J une 26, 2014, the Supreme Court of Canada granted the first ever declaration of Aboriginal title, a significant victory for Aboriginal peoples across Canada. The court recognized that Aboriginal title can exist over large tracts of land, not just traditional village sites or farms. The court also made some important findings about the rights that come with Aboriginal title. The court found that holders of Aboriginal title have similar rights to private property owners. They have the right to: decide how the land will be used; the enjoyment and occupancy of the land; possession of the land; the economic benefits of the land; and the use and management of the land. Aboriginal title is a collective right, so the land cannot be used by Aboriginal title holders in a way that would prevent the use and enjoyment of the land by future generations, but that does not mean that uses are restricted to traditional practices. Aboriginal title holders may put the land to modern uses if that is their choice. As a result of this case, once Aboriginal title is recognized over land, by agreement or in the courts, the government and any individuals or companies must get the Aboriginal groups consent to use the land. If they cannot get consent, government can only use the land if they have fulfilled their duty to consult and accommodate the Aboriginal group, they have a compelling and substantial objective behind their actions, and their actions are consistent with the Crowns fiduciary obligation towards the group. This means the governments action must respect the interests of the Aboriginal people and cannot deprive future generations of title holders of the use of the land. The court also said some important things about how the government must deal with land that is subject to an Aboriginal title claim. Even where title is not yet proven, the government has a duty to consult and accommodate the Aboriginal group. Where the claim to title appears to be strong, this will require a high level of consultation and possibly accommodation. Where the claim is particularly strong, the government may have an obligation to preserve the land until the claim is resolved. While consent is not required where Aboriginal title has not yet been recognized, the court encouraged govern- ments and industry to get consent from Aboriginal groups if they want to avoid legal wrangling in the courts over failure to consult. This case provides Aboriginal peoples in Canada with some important legal tools to prevent government action on lands subject to Aboriginal title claims and a clear way forward for First Nations who wish to seek recognition of their title to traditional lands. The decision also highlights the importance of meaningful consultation to address impacts to First Nations rights, including both Aboriginal rights and Treaty rights. In some cases, that duty will require the Crown to take steps to preserve the First Nations interests. Initial practical steps that First Nations may take in response to this decision include: 1. Ensuring that in any consultation process, the Crown is put on notice, in writing, of the First Nations claim of Aboriginal title and the need to ensure that the land is preserved pending resolution of any such claim; 2. Informing the Crown during consultation processes how the governments proposed action will substantially deprive future generations of the use of land subject to Aboriginal title; and 3. Consider compiling existing evidence of title (reports, maps, studies, oral histories etc.). Send that material to the Crown (ideally on a cd-rom) as part of the consultation record. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -40- an informative <e-note> by fourarrows@rogers.com 6July 2014 DAVID NAHWEGAHBOW NAHWEGAHBOW CORBIERE, GENOODMAGEJIG/BARRISTERS & SOLICITORS Suite 109, 5884 Rama Road, Rama, Ontario L3V 6H6 705.325.0520 mail@nncfirm.ca The Crowns lost: common sense, the rule of law and constitutionalism prevailed The Tsilhqotin Nation case is a landmark decision because it is the first time in history that the Supreme Court ever issued a declaration of Aboriginal title essentially a declaration that the Tsilhqotin owned the land. It is clear the Court had no other legitimate choice. The BC government did not properly consult and accommodate the Tsilhqotin people with regard to forestry operations within their lands. The BC Supreme Court had issued a non-binding ruling wherein J ustice Vickers said that the Tsilhqotin probably had Aboriginal title and that the Crown ought to negotiate a fair and honourable settlement. What did the federal and BC governments do? Ignoring previous directions from the Supreme Court to seek reconciliation, they decided to appeal the ruling to the BC Court of Appeal. Then it went to the Supreme Court of Canada. The Crowns lost; common sense, the rule of law and constitutionalism prevailed. The Crown governments argued that Aboriginal claimants had to establish intensive physical use of specific tracts of land to prove Aboriginal title what has come to be known as the postage stamp theory of Aboriginal title. As the ethnocentric argument goes, the Tsilhqotin and Aboriginal peoples generally were nomadic or semi-nomadic and unlike sedentary agricultural people, could never establish Aboriginal title to their traditional territories. Further, one of the most interesting things about the Tsilhqotin case is with regard to the doctrine of terra nullius, a Latin term which means empty land. That theory espouses that Indigenous peoples were so uncivilized that they could not be seen in law to be true legal occupants and owners of their lands. It was the legal basis upon which Indigenous peoples were dispossessed of their lands throughout the colonial period in many parts of the world. The Crown postage stamp theory of Aboriginal title is reminiscent of the doctrine of terra nullius. The Supreme Court has now stated unequivocally in the Tsilhqotin case that the doctrine of terra nullius is not part of the law in Canada. There is another important point in the case and that is the issue of consent. The Supreme Court wrote that whether before or after a declaration of Aboriginal title, governments and individuals can avoid an infringement of the duty to consult by obtaining the consent of the Aboriginal group affected. This effectively raises the significance of the First Nation communities in decision-making processes regarding resource management decisions affecting their land and rights. This lends credence to the United Nations Declaration on the Rights of Indigenous Peoples, which calls for the free prior and informed consent before development on Indigenous lands. What are the implications of the Tsilhqotin Nation case for Canada? Will Crown conduct change? It is hard to say. Unfortunately, judging from their past conduct, it is quite likely that federal and provincial governments will again ignore the advice of the Court on reconciliation. This will mean more conflict in the future. However, I am hopeful that the Crown will learn from this case: that they will sit down with Indigenous peoples, modify federal and provincial laws and policies to positively embrace what section 35 of the Constitution Act, 1982 provides, and what the Supreme Court has been saying all along Aboriginal and treaty rights are hereby recognized and affirmed, and not denied, infringed and extinguished. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -41- an informative <e-note> by fourarrows@rogers.com 6July 2014 JESSICA CLOGG, SENIOR COUNSEL jessica_clogg@wcel.org WEST COAST ENVIRONMENTAL LAW 14 www.wcel.org 2000- 2006 West 10th Avenue Vancouver, BC Canada, V6J 2B3 Phone: 604-684-7378 Legal barriers to proving title in the courts have been lowered substantially We acknowledge with gratitude the leadership, Elders and community members of the Tsilhqotin Nation for their courage and strength in this long fight, and the hard work of the many First Nations and organisations who brought their voices to the court as interveners, as well as the legal teams of all involved. The SCC decision increases legal risk for Enbridge: once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title- holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. If legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title. In the result the legal barriers to proving title in the Canadian courts have been lowered substantially. A new emphasis on seeking and obtaining the consent of First Nations to proposed development in their territories is front and centre in the SCC decision. After confirming that Aboriginal title includes the right to proactively use and manage the land the Chief J ustice goes on, as follows: I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group. Confirming our shared responsibility to future generations is another important theme in the Tsilhqotin decision. One of the unique elements of Aboriginal title is that it is a collective title held not only for the present generation but for all succeeding generations; this means that Aboriginal title lands cant be developed or misused is a way that would substantially deprive future generations of the benefit of the land. In Tsilhqotin, SCC goes an important further step, and confirms that this inherent conservation limit also restricts the Crown, and by extension third parties who seek Crown licences, approval or permits for development. In the decision, the Chief J ustice emphasizes that: This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land. Consultation must occur before resource development decisions are made In light of the Tsilhqotin decision this is a significant legal vulnerability for the federal government and Enbridge. More particularly, in reviewing the obligations of the Crown to consult and accommodate First Nations prior to a court confirmation of title, the Chief J ustice emphasized that: The duty to consult must be discharged prior to carrying out the action that could adversely affect the right. With clarification from the Supreme Court of Canada that consultation must occur before the Crown takes action that could adversely impact Aboriginal title and rights, the legal vulnerability of the federal government and Enbridge on this point is apparent. All told, the Tsilhqotin decision will have profound implications for all aspects of land and water use in British Columbia, but given the timing of the decision, perhaps none more so than the proposed Enbridge Northern Gateway tankers and pipelines project. The full text of the media statement is available at 14 http://wcel.org/resources/environmental-law-alert/tsilhqotin-nation-v-british-columbia-implications-enbridge-tankers <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -42- an informative <e-note> by fourarrows@rogers.com 6July 2014 DAVID ROSENBERG, ROSENBERG LAW 671D Market Hill Vancouver, BC V5Z 4B5 Telephone: (604) 879-4505 http://rosenberglaw.ca/ Tsilhqotin Nation was represented before the Supreme Court of Canada by David M. Rosenberg, Q.C., Jay Nelson, David M. Robbins and Dominique Nouvet. Aboriginal Title Holders Own Their Land Lock, Stock and Barrel It may take a while for the decision to sink in and it may require a paradigm shift in the way government has approached the issue but Aboriginal title is not a difficult concept. Aboriginal title is tantamount to ownership. Aboriginal title holders own their land, - lock, stock and barrel. There are three things that differentiate Aboriginal title from fee simple or what we commonly think of as ownership. Aboriginal title is inalienable except to the Crown. It is held communally, and the title holder is subject to the inherent limit in that Aboriginal title lands cannot be wasted or destroyed. The Chief J ustice of the Supreme Court of Canada has spoken clearly and most eloquently for a unanimous court. All eight J ustices agreed and there were no dissents. The decision was not close. If Government wants to interfere with that right of ownership, that right to pro-actively manage and make decisions about the use of the land and its resources, it needs to seek the consent of the First Nation that holds title. The Chief J ustice of the Supreme Court of Canada has spoken clearly and most eloquently for a unanimous court. All eight J ustices agreed and there were no dissents. The decision was not close. How much land are we speaking of in British Columbia that is subject to Aboriginal title? Most of the land in British Columbia is not covered by Treaty. There have been no conquests. There has never been a legal dispossession of the land through colonial legislation or otherwise. So for most of British Columbia, where exclusive occupation can be established at the date of sovereignty assertion (1846) that land is owned by the First Nation that exclusively occupied it. When we describe lands that are subject to Aboriginal title we are not speaking of spots or sites or intensively used pockets. We are speaking of territories. In each case it will be a question of fact as to the actual area of land that a First Nation exclusively occupied at the relevant time. For the Tsilhqotin, the Supreme Court of Canada has upheld the Trial J udges finding that it holds title to almost 2,000 square kilometers in central BC. It is safe to say that this case will have a major impact on resource development and land use in British Columbia and Canada. First Nations will have more bargaining power at Treaty tables. First Nations will be able to reap the economic benefit from their lands and sustain their cultures into the future. MANDELL PINDER 422 - 1080 Mainland Street Vancouver, BC, V6B 2T4 604-681-4146, info@mandellpinder.com http://www.mandellpinder.com/tsilhqotin-nation-v-british-columbia-2014-scc-44-case-summary/ for the full media release. Watershed Decision Significantly Alters Legal Landscape in Canada
In a watershed decision released today, the Supreme Court of Canada (SCC) allowed the Tsilhqotin Nations appeal and, for the first time in Canadian history, granted a declaration of Aboriginal title. This case significantly alters the legal landscape in Canada relating to land and resource entitlements and their governance. Impacts of Provincial Legislation
In light of its declaration of Aboriginal title, and based on the Forest Acts definition of Crown timber and Crown lands not including timber on Aboriginal title lands, the SCC found that the Forest Act did not apply to the Tsilhqotins Aboriginal title lands. The SCC concluded that the legislature intended the Forest Act to apply to land under claims for Aboriginal title up to the time title is confirmed by agreement or court order. However, once Aboriginal title is proven, the beneficial interest in the land, including its resources, belongs to the Aboriginal title holder. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -43- an informative <e-note> by fourarrows@rogers.com 6July 2014 On the question of whether provinces can legislate in relation to Aboriginal title and rights, or whether this amounts to an interference with a core area of federal jurisdiction under s. 91(24), the SCC held that the doctrine of inter-jurisdictional immunity did not apply. The SCC reasoned that the inter-jurisdictional issue in this case was not one of competing provincial and federal powers but, rather, of addressing the tension between the rights of Aboriginal title holders to use their lands as they choose, and the authority of the Province to regulate land use. The SCC concluded that the guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982 operates as a limit on both federal and provincial legislative powers; therefore, the proper way to curtail interferences with Aboriginal rights and to ensure respect from Crown governments, is to require that all infringements, both federal and provincial, are justified. Sufficient and Exclusive Occupation The SCC reasoned that Aboriginal title was not limited to village sites but also extends to lands that are used for hunting, fishing, trapping, foraging and other cultural purposes or practices. Aboriginal title may also extend beyond physically occupied sites, to surrounding lands over which a Nation has effective control. The SCC endorsed further examples of Aboriginal occupation sufficient to ground title including warning off trespassers, cutting trees, fishing in tracts of water and perambulation. Further, the SCC affirmed the importance not only of the common law perspective but also of the Aboriginal perspective on title including Aboriginal laws, practices, customs and traditions relating to indigenous land tenure and use. The principle of occupation, reasoned the SCC, must also reflect the way of life of Aboriginal people, including those who were nomadic or semi-nomadic. The SCC reasoned that the criterion of exclusivity may be established by proof of keeping others out, requiring permission for access to the land, the existence of trespass laws, treaties made with other Aboriginal groups, or even a lack of challenges to occupancy showing the Nations intention and capacity to control its lands. Moving Forward This case provides First Nations with significantly improved opportunities to advance their Aboriginal title and rights in a manner that reflects their vision, values and perspectives. The SCCs decision essentially requires that the Crown and industry meaningfully engage with Aboriginal title holders when proposing to make decisions or conduct business on their territories. This engagement can no longer be limited to small spots but must be achieved with a view to tangibly addressing the incidents of title affirmed by this case; namely, the right of enjoyment and occupancy of title land; the right to possess title land; the right to economic benefits of title land; and the right to pro-actively use and manage title land. In this light, as the Court emphasized the Crown and industry would be well advised to avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group. Pragmatically speaking, this case provides sound guidance for effective and balanced consultation and accommodation discussions regarding decisions taken on Indigenous lands. GOWLING LAFLEUR HENDERSON LLP Paul Seaman paul.seaman@gowlings.com (416) 862-3614; Scott A. Smith, Maya Stano and Guy Rgimbald Offices in Ottawa, Montreal, Toronto The full summary of the case is at http://www.gowlings.com/RepresentativeWork/case.asp?caseID=1245 One of the most significant Aboriginal law cases in Canadian history The Supreme Court of Canada (the Court) rendered one of the most significant Aboriginal law cases in Canadian history: the decision in the Tsilhqotin case marks the first time in Canadian law that a declaration of Aboriginal title has been made; prior cases had indicated that Aboriginal title as a legal concept existed, but no case had made an actual finding of Aboriginal title until now. The case is expected to have significant ramifications, particularly in British Columbia, given the relative paucity of Aboriginal treaties across that province. The Court considered the following six issues in deciding <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -44- an informative <e-note> by fourarrows@rogers.com 6July 2014 the appeal: Whether the technical error in the Tsilhqotins pleadings noted by the courts below precluded the issuance of a declaration of Aboriginal title; What the test for Aboriginal title is, and in particular, to what extent Aboriginal peoples may prove title throughout their traditional territories as opposed to at specific sites; Whether the test for Aboriginal title was met in this case; The legal characterization of Aboriginal title; What duties were owed by the Crown to the Tsilhqotin at the time of the Crowns decision to allow logging within the Claim Area; and The extent to which provincial laws of general application, and in particular the B.C Forest Act in this case, may apply to Aboriginal title lands. 1. Applicable legal principles and evidence relating to an Aboriginal title claim may be unclear at the outset of the case, and that it is in any event in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter to achieve reconciliation mandated by s. 35. 2. Referring to its previous decision in Delgamuukw and the High Court of Australias decision in Western Australia v. Ward (2002), 213 C.L.R. 1, the Court confirmed that the test for Aboriginal title relied on three characteristics that should not be considered independently or in a rigid fashion: (i) sufficient pre-sovereignty occupation; (ii) continuous occupation (where present occupation is relied on); and (iii) exclusive historic occupation. 3. The Court confirmed that whether the evidence in a particular case supports Aboriginal title is a question of fact to be determined by the trial judge, and held that the trial judge applied the proper test of regular and exclusive use of the land. Conversely, the Court held that the Court of Appeal had erroneously applied a standard of regular presence on or intensive occupation of particular tracts and further confirmed that the Delgamuukw case had affirmed a territorial approach. 4. Reviewing its earlier decisions relating to Aboriginal title, the Court confirmed that Aboriginal title includes the following rights: a) decision-making power over how the land will be used; b) enjoyment and occupancy of the land; c) possession of the land; d) economic benefits arising from the land; and e) pro-active use and management of the land 5. Importantly, the Court concluded by remarking that [g]overnments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the Aboriginal group. 6. Notably, the Court drew an important distinction between general regulatory legislation and legislation that assigns Aboriginal property rights to third parties. The Court reasoned the former, such as legislation aimed at environmental conservation, will often pass the above test, whereas the latter will not. DAVIES WARD PHILLIPS & VINEBERG LLP http://www.dwpv.com/en/ ALEXANDRA PIKE apike@dwpv.com AND SARAH POWELL apike@dwpv.com 155 Wellington Street West Toronto, ON M5V 3J7 Telephone: 416.863.0900 On J une 26, 2014, the Supreme Court of Canada (SCC) granted the appeal of the Tsilhqotin Nation, confirming their aboriginal title over tracts of Crown land in B.C. Until this landmark decision, previous claims of aboriginal title had failed to meet the stringent test set out in the SCCs 1997 decision in Delgamuukw for aboriginal title to lands: the aboriginal claimant must demonstrate that their occupation of the lands before sovereignty was sufficient, continuous and exclusive. By demonstrating that the Tsilhqotin Nations semi-nomadic ancestors had hunted, fished and gathered on the lands prior to sovereignty to the exclusion of others and that the Tsilhqotin Nation continues to use the lands today, the Tsilhqotin Nation had their right to control such lands assured through a declaration of aboriginal title. The decision confirms the Crowns obligation to consult and accommodate Aboriginal interests on such lands and goes further to explain that any development on Aboriginal title lands would be subject to the consent of the aboriginal titleholder. Absent such consent, the Crown can only infringe proven aboriginal title by establishing such use is justified on the basis of the broader public good under Section 35 of the Constitution Act, 1982. The Crown must establish that the infringing use serves a compelling and <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -45- an informative <e-note> by fourarrows@rogers.com 6July 2014 substantial public interest and is consistent with the Crowns fiduciary duty to the aboriginal titleholder. The SCC called for a culturally sensitive approach to assessing title, recognizing the intention and capacity of the Tsilhqotin Nation to control the area. By confirming a territorial use-based approach to analyzing aboriginal title (i.e., rather than relying on proven use at specific sites), this decision provides important guidance to governments and development proponents: the court must be careful not to lose or distort the aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty aboriginal interests into equivalent modern legal rights. Concerns over widespread development restrictions resulting from this decision are likely premature. On the issue of what public benefit objectives could justify infringement on aboriginal title, the SCC confirmed its decision in Delgamuukw that the development of agriculture, forestry, mining, hydroelectric power and infrastructure could be compelling and substantial, but would have to be considered on a case-by-case basis. In this case, the enactment and application of B.C.s forestry management and harvesting regime to the aboriginal title lands of the Tsilhqotin Nation failed to meet this test. The findings of the lower court were upheld as to the limited public benefit (economic or ecological) of the forestry regime, and it was determined that undue hardship and denial of rights of the Tsilhqotin Nation would result. What perhaps should be given more attention is the assertion by the SCC that the aboriginal titleholder and any government authorizing development on the lands must ensure that such development does not deprive future aboriginal generations of the control and benefit of the lands. We can expect that the exhaustion of particular resources and the footprint of proposed developments will be given significant scrutiny. After 20 years in the courts, the success of the Tsilhqotin Nation in this case has ushered in another important phase of aboriginal rights recognition in Canada and provides important guidance on how the concepts of sufficiency, continuity and exclusivity will be applied to aboriginal title claims across Canada. Resource development in areas where aboriginal title remains an issue (predominantly B.C. and Eastern Canada, but also parts of Ontario, Quebec and the North) will require enhanced aboriginal engagement, clear public benefit and protection of future aboriginal use. MCMILLAN LLP http://www.mcmillan.ca/ ROBIN M. JUNGER, JOAN M. YOUNG, BRITTNEE RUSSELL and BRENT RYAN Brookfield Place, Suite 4400, 181 Bay Street Toronto, Ontario M5J 2T3 Tel: +1 416 8657000 While there is no question that Tsilhqotin is a significant decision, it is equally important to note that most of the Court's findings simply summarize or restate holdings in previous decisions, all of which have been part of the development of the law of Aboriginal title over the last decades. First and foremost, the decision confirms the existing jurisprudence on the test for establishing Aboriginal title and the nature of it. It requires exclusive occupation by Aboriginal groups at the time Canadian sovereignty was asserted. While the additional guidance that the Court provides in determining what is sufficient "occupation" at the time of sovereignty is important, the Court specifically notes its findings are consistent with its prior decisions: "In fact, this Court in Marshall; Bernard did not reject a territorial approach, but held only (at para. 72) that there must be "proof of sufficiently regular and exclusive use" of the land in question, a requirement established in Delgamuukw." (para 43) And while the area of land over which title was found is not insignificant, it is also important to note that it represents only approximately 2% of the Tsilhqot'in traditional territory. The Court also comments extensively on the nature of Aboriginal title, and other related principles such as the inherent limitation that Aboriginal groups not use title lands in a manner that is inconsistent with enjoyment by future generations. It also comments extensively on the test by which infringement of Aboriginal title can be "justified". But again, all of these findings are based on the Court's prior decisions and do not represent any major changes in the law. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -46- an informative <e-note> by fourarrows@rogers.com 6July 2014 There are a few passing comments from the Court that will surely be the subject of further discussion in future litigation. For example, the Court makes a brief statement at paragraph 92 to say that projects might need to be cancelled if they begin without Aboriginal consent, title is later proven and continuing the project would be "unjustifiably infringing". Similarly, the Court states at paragraph 86 that "incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land". Provincial jurisdiction over title lands The one area where this decision does represent a significant change in the law is that, for the first time, the Supreme Court of Canada clearly states that provincial legislation can apply to lands that are subject to Aboriginal title. While the application of such legislation will be dependent on meeting the justification analysis, there are no inherent limits from a federal/provincial division of powers perspective that prevent the provincial government from legislating over Aboriginal title lands. By holding that the well-established constitutional doctrine of "interjurisdictional immunity" has no potential application in these circumstances, the Court has eliminated one of the key clouds of uncertainty that existed after the decisions below. Now governments will have to carefully consider how to tailor legislation to ensure that its application on Aboriginal title lands happens only in a manner that will be considered "justified". While there will no doubt be challenges in doing so, this is, from a constitutional perspective, a good problem for provincial governments to have. Will there be a floodgate of Aboriginal title litigation? An inevitable question is whether this decision will result in a significant number of other Aboriginal title claims coming forward through litigation. Only time will tell, but it is certainly not inevitable that this will be the case. Such litigation costs many millions of dollars, and at the end of the day, federal and provincial legislation can still infringe Aboriginal title for compelling purposes including economic development, mining and forestry. While Aboriginal title can provide Aboriginal groups with very important abilities to determine the use of land (subject to any justified infringements) and derive economic benefits, one should not underestimate the degree to which involvement in land use, regulatory decision-making and benefit sharing can occur in pre-proof context through the exercise of rights concerning the duty to consult and accommodate. And while there is no requirement to provide economic benefits during the consultation and accommodation that takes place before Aboriginal rights or title are proven in Court, as a matter of practice it is quite common, and the government of British Columbia has brought forward many types of revenue sharing and other non-treaty arrangements that provide meaningful benefits to Aboriginal groups. Ultimately, Aboriginal groups will have to determine whether they believe the additional rights and benefits that they derive from pursuing title litigation, with all of its costs and uncertainties, are sufficiently worth it. It is certainly possible that many will decide it simply is not, provided that meaningful reconciliation initiatives continue in the pre-proof context. Is compensation required for past activities once title is proven? Aboriginal title includes the right to economic benefits from the land, and since Aboriginal title is established at the time of sovereignty, a significant question remains about whether and what compensation will be owed by governments to Aboriginal groups in respect of any unjustified resource extraction that occurred between the date of Canadian sovereignty and the date a Court may ultimately find Aboriginal title. This issue is not addressed by the Court in this decision, but it is one of the most significant questions that remain unanswered at this time. In earlier decisions such as Delgamuukw, the Court spoke openly about claims for damages resulting from unjustified infringements of Aboriginal title, without appearing to limit that discussion to activities that occurred before title was proven. But in no case to date has the Court ruled conclusively on these issues. Conclusion The Tsilhqot'in decision is historic and groundbreaking in the sense that it is the first time Aboriginal title has been declared under a framework that has been in existence for decades. But in many respects the decision simply adopts and applies existing jurisprudence and does not represent a substantial change in the law of Aboriginal title. It does however provide clarification on what constitutes "occupation" for title purposes, as well as confirmation that provincial laws continue to apply to Aboriginal title lands, subject to justification requirements. Such clarity is essential to promote reconciliation efforts and the continued governance of Canada and British Columbia. <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -47- an informative <e-note> by fourarrows@rogers.com 6July 2014 JOSEPH J. ARVAY, Q.C., jarvay@arvayfinlay.com CATHERINE J. BOIES PARKER cboiesparker@ubplaw.ca PROFESSOR PATRICK MACKLEM p.macklem@utoronto.ca The Modern Conception of Aboriginal Title Must Not be Diluted By Concerns About the Impact of Recognizing Historical Realities (Intervention in Tsilhqotin for the Assembly of First Nations) The promise of the law of Aboriginal title is the recognition of First Nations, both at the time of the assertion of sovereignty and in the present, as legal, political and cultural nations with a right to self determination. These Indigenous legal orders occupied, used and treated the land as their own. The modern conception of Aboriginal title must not be diluted by concerns about the impact today of recognizing the historical realities of First Nations and their interactions with the Crown. There are many and varied ways in which reconciliation of the two legal orders can be accomplished. But it must start with recognition and respect for the rights of First Nations as distinct and sovereign peoples who occupied their land and territories, in accordance with their own laws. In addition, Aboriginal title must be conceived in a way which recognizes the continuing role of First Nations, as holders of title, to be able to exercise their collective will over how to use and benefit from that land, into the future. Only in this way will the constitutional affirmation of Aboriginal rights and title law play a meaningful role in structuring and supporting the ongoing relationship between First Nations and the Canadian state. Instead, both in its approach to the definition of title, and in its justification, the Court of Appeals decision has the effect of reducing the Appellant to a group of people who must be allowed to live in villages and go hunting and fishing together. Indeed it treats them worse than the settlers who came long after when they should be treated so much better given their nation status. It ignores the significance of their collective intention to exclude others from the land at the time of the assertion of sovereignty, and it deprives them of the ability to effectively continue to control the use of their land into the future. In Delgamukkw, this Court made it clear that both the common law and Aboriginal perspectives must be taken into account in addressing Aboriginal title. The importance of taking seriously the need to incorporate the Aboriginal perspective cannot be overstated, and is the subject of submissions by the Appellant and several interveners. It is also important to ensure that the common law perspective is properly interpreted and applied, if those principles are to be used as part of the framework within which Aboriginal realities are recognized as modern legal rights.
It is clear that the Crown, in the late 19 and early 20 th th centuries, understood Aboriginal title (then called Indian title) to extend to all of those areas habitually used by Aboriginal peoples. This is evident both from the description of the lands covered by the treaties entered into at that time and the establishment of reserves. The Crown did not act in accordance with an understanding that Aboriginal title only existed over those lands which were intensively occupied. Instead, it was understood that the Crown needed to enter into treaties with respect to the full range of an Aboriginal communitys territory. . . In an action for a declaration for Aboriginal title, the judiciarys role is to go back and assess the historical evidence to determine what the First Nations relationship with the land was at that time. At or after the assertion of sovereignty, the Tsilhqotin Nation and the Crown should have negotiated a mutually acceptable approach to co-existence. This aspect is unfinished business and still needs to occur. Concerns about the impact of finding that historical Aboriginal title exists are legitimate, but will only be fully addressed through respectful negotiation that in turn is based on recognition of a robust interpretation of Aboriginal title. That negotiation must be based on an appreciation of the full extent to which the Tsilhqotin have been denied their rights, as well as a full understanding of the competing interests, such as those of third parties, which may require accommodation and compromise in the future. Reconciliation will come as a result of respectful dialogue, discussion and compromise by the parties. In an action for a declaration of Aboriginal title, the role of the judiciary is not to identify what this compromise should be, but to define the Aboriginal legal entitlements recognized by the Constitution which are the necessary pre-conditions to meaningful negotiation. There is nothing to be gained by refusing to acknowledge the prior occupation by a First Nation, parties can engage in substantive negotiations that would lead to far more nuanced and creative arrangements than any court could <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -48- an informative <e-note> by fourarrows@rogers.com 6July 2014 devise. It may be that new judicial remedies will have to be developed to encourage, support and perhaps supervise those negotiations, based on the honour of the Crown. J ust as the Court has developed the duty to consult to assist the parties in the pre-proof stage, it may be necessary to develop remedies to encourage negotiations. But if the Court of Appeals initial articulation of the First Nations Aboriginal title is concerned with ensuring the well-being of all Canadians and minimizing the impact on principles of Crown sovereignty, the prospect of achieving reconciliation through mutually respectful negotiations will be rendered hopeless before it has really begun. Reconciliation will come as a result of respectful dialogue, discussion and compromise by the parties. In an action for a declaration of Aboriginal title, the role of the judiciary is not to identify what this compromise should be, but to define the Aboriginal legal entitlements recognized by the Constitution which are the necessary pre-conditions to meaningful negotiation. BRIAN P. DOMINIQUE 416 869 5435, LINDA I. KNOL 416 860 6614 CASSELS BROCK 40 King St. West, Suite 2100 TORONTO, ONTARIO M5H 3C2 Re Tsilhqotin, once Aboriginal title has been established, the Aboriginal title holders have the right to decide how the land will be used and the right to benefit from economic development. Governments that seek to use Aboriginal title land must either obtain the consent of the Aboriginal title holders or justify any infringements under s. 35 of the Constitution Act, 1982. The mere assertion of a claim to Aboriginal title raises significant implications for governments and project proponents. The SCC affirmed the existing regime from Haida concerning the Crown's duty to consult and, where appropriate, accommodate as soon as a claim of Aboriginal title has been made. The decision underscores the need for early Crown and proponent consultation with First Nations, and legal advice in relation to these matters. In addition, the SCC's decision has the potential to: open the door for more claims of Aboriginal title; put some existing and prospective projects at risk in areas where Aboriginal title has or can be asserted; shift the balance in some ongoing land claim negotiations in favour of First Nation claimant(s); increase the length of time it will take for governments and proponents to negotiate projects with First Nations that have existing or potential Aboriginal title claims, with a corresponding increase in negotiation, development and settlement costs; and cause governments to have clear and specified objectives for any legislation that has the potential to impact Aboriginal rights in order to pave the way for justifying any infringements. There is nothing to be gained by refusing to acknowledge the prior occupation by a First Nation, parties can engage in substantive negotiations that would lead to far more nuanced and creative arrangements than any court could devise. It may be that new judicial remedies will have to be developed to encourage, support and perhaps supervise those negotiations, based on the honour of the Crown. Southern Chilcotin Mountains <e-notes> Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -49- an informative <e-note> by fourarrows@rogers.com 6July 2014 LAURA EASTON leaston@davis.ca 403.698.8753 HEATHER TREACY htreacy@davis.ca 403.294.3589 DAVIS LLP
Implications of Tsilhqotin: Why Due Diligence is Crucial The implications of this decision are significant for several reasons. The Tsilhqotin Nation is one of hundreds of indigenous groups in British Columbia with unresolved land claims. Therefore, this decision provides important guidance from our highest court on what is required to establish Aboriginal title, including as it pertains to semi-nomadic Aboriginal peoples. Most importantly, this decision demonstrates the critical role of the Crown in undertaking consultation and, if appropriate, accommodation prior to the establishment of Aboriginal title. After Aboriginal title to land has been established, the Crown must then seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982. The duty placed upon the Crown is significant and, if not carried out appropriately, may affect the development of projects by project proponents. As the Court noted, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title. While provincial laws of general application will apply to lands held under Aboriginal title, there are important constitutional limitations. Any limitations imposed by provincial laws must not be unreasonable; they must not impose undue hardship; and they must not deny the holders of the right their preferred means of exercising the right. It may be predicted that laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests will often pass this test. However, the issuance of licenses, permits or leases on Aboriginal title land that result in a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal groups ownership right amounting to an infringement, must be justified in those cases where it is done without Aboriginal consent. While project proponents are always encouraged to undertake their own consultation with Aboriginal groups, it will become increasingly important to carry out proper due diligence where claims to Aboriginal title are being advanced. It will be important to confirm the nature and status of these claims to better assess the timelines and required steps associated with project development. Finally, for project proponents, in cases where Aboriginal title has not yet been proved and certainly in cases where it has been proved, it will be crucial to carefully monitor the Crowns conduct to ensure that proper consultation and consent or proper justification is obtained and established where projects are at stake.
United States v. 3,218.9 Acres of Land, More or Less, Situated in The County of Warren, State of Pennsylvania and Taxasgulf, Inc., 619 F.2d 288, 3rd Cir. (1980)