By Roy L Hales
Supreme Court Recognizes Tsilhqot’in First Nation’s Title
In their ruling, the eight justices stated (para 80 of the attached) the Crown has “a procedural duty … to consult and, if appropriate, accommodate” even “unproven Aboriginal interest.” The Province of British Columbia “breached its duty to consult and accommodate the Tsilhqot’in interest.”
Now that the Tsilhqot’in First Nation’s title has been established, it has (para 94) “… the right to proactively use and manage the land.”
The Crown cannot issue timber licenses for these lands because (para 115) they “are no longer Crown lands.”
BC’s Minister of Justice, Lori De Luca, responded in a press release, “The decision provides additional certainty around processes and tests that are applied to the relationship between the Province and Aboriginal peoples. We will take the time required to fully analyze it and work with First Nations, industry and all of our stakeholders as we do so.”
The court also laid out three tests by which semi-nomadic tribes, such as the Tsilhqot’in, can validate their claim:
- the land must have been occupied prior to sovereignty,
- if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and
- at sovereignty, that occupation must have been exclusive.
It Only Took 150 Years
“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, “Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, told CBC news.
“I didn’t think it would be so definitive,” he added. “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.”
Though there are still circumstances in which the Crown may override Aboriginal title, as is the case with privately owned lands, the Crown had a fiduciary duty to the First Nations:
(para 86)“This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.”
This would seem to make it virtually impossible for the Northern Gateway pipeline to be built though lands claimed by the Yinka Dene Alliance, without their express permission.
Trans Mountain Pipeline
The Trans Mountain Pipeline faces a similar block.
“The Crown and NEB are running roughshod over our Aboriginal Title and Rights,” said Chief Maureen Thomas, of the Tsleil-Waututh Nation, in a recent press release. “The process to review Kinder Morgan’s proposed pipeline expansion and tanker project was designed without First Nations consultation or public participation. The timelines appear to have been designed to rush through approvals.”
“Today’s court ruling sends a very strong message that First Nations must and will have a far greater say in how our province is developed,” said Executive Director Bob Peart of BC’s Sierra Club. “In addition to the forestry issues at the heart of this case, this ruling will have major implications for fossil fuel development projects such as Enbridge’s Northern Gateway and Kinder Morgan’s TransMountain pipeline and tanker proposals.”