Letters: Additional information to Fletcher’s column

The landmark decision on Tsilhqot'in land is complex

Just some clarifications regarding Tom Fletcher’s column, Life after the Tsilhqot’in decision (B.C. Views, July 9 Sooke News Mirror).

1. Federal and provincial authority may vary with the strength of an aboriginal title claim, as Fletcher contends, in the sense that the obligation to consult and accommodate is proportional to the strength of the claim. But this is not so once aboriginal title has been proved in court (as the Tsilhqot’in have done).

Once such title is established it is no longer a matter of a “claim” and the aboriginal owners must consent to any development proposal respecting their land – unless the government supporting such a development meets the stringent constitutional test for limiting aboriginal rights and title in the absence of consent.

2. A finding of aboriginal title does not necessarily “lock in” communal ownership.

Just as treaty First Nations may agree to convert land to fee simple title, aboriginal title holders may agree to surrender land to the federal Crown on the condition that it be re-conveyed to them for the purpose of conversion to fee simple.

I suspect that obtaining such agreement is no easier in the former scenario that the latter, but it may be.

3. The Tsilhqot’in had a long history of keeping others out, and were the only First Nation that was hostile even to the fur trade. But they did not fight a war in the 1860s to defend their territory from a “wave of gold seekers.” They expelled everyone.

In 1864, after being threatened by the foreman of a crew building a wagon road through their territory – he had warned darkly of bringing back the small pox that had killed at least one third of their population two years earlier – they killed nearly all the crew and then killed or expelled all white settlers from their territory.

 

Hamar Foster, QC

Professor of Law

University of

Victoria

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

This photo of Cheryl-Lynn Townsin and her daughter, Lexi, is part of Townsin’s documentary, RARE HUMANS - Turning Hope into Action, her capstone project for her graduate degree from Royal Roads University. (Photo courtesy of Cheryl-Lynn Townsin)
Greater Victoria mother’s grief fuels documentary of ‘Turning Hope into Action’

Lexi, 6, died in 2019 from Blau Syndrome and is among the children documented

A survey by Statistics Canada finds Black Canadians earn less than non-visible minority Canadians despite having higher levels of education. (The Canadian Press file photo)
COVID-19 worsened unemployment picture for Black Canadians

Black Canadians also more likely to suffer other hardships

This dead fir tree is one of many in Mount Douglas Park. Nine dead trees will be removed from the Douglas Creek site starting March 8 to make way for the construction of a new pedestrian bridge. (Photo courtesy Jason Clarke)
Nine dead, hazardous trees to be removed from Saanich park ahead of bridge construction

Felling begins March 8, minor trail interruptions expected in Mount Douglas Park

Activists from the Fairy Creek Blockades hold the injunction application notice which was submitted by logging company Teal Jones to the B.C. Supreme Court. The application, which asks to have blockaders removed from the sites that stop access to cut blocks, is set to be heard on March 4. (Photo contributed/Joshua Wright)
Activists hunker down to protect Fairy Creek near Port Renfrew from logging

Forest company Teal Cedar applies for injunction to remove seven-month-old blockades

The application proposing to rezone Western Speedway was passed by Langford’s planning, zoning and affordable housing committee Feb 8. A petition has since been started by residents of Trudie Terrace, hoping to stop the proposed residential portion of the development plan. (CBRE Victoria)
Petition opposing Western Speedway development proposal gains steam

Save Thetis Heights Neighborhood petition aims to stop extension of Trudie Terrace

Older rental apartments are prime candidates for renovations, and could result in lost affordable housing stock. (Zoë Ducklow photo)
B.C.’s renoviction overhaul a good start, but won’t preserve affordable stock, lawyer says

And still no protection for people who can’t pay rent due to COVID-19

(Photo by Marissa Baecker/Shoot the Breeze)
B.C. WHL teams to hit the ice with Kelowna, Kamloops hub cities

Kelowna, Kamloops centres chosen to host B.C. WHL teams for 24-game regular season

.
LETTER: Anti-semitism definition lacking

Re: We must identify anti-Semitism and combat it (Online, Feb. 26) I… Continue reading

The victim of the homicide on Cowichan Lake Road early Monday morning was 17 years old, and was stabbed in the incident. (File photo)
Duncan homicide victim was 17 years old

RCMP report that teenager was stabbed

(File photo)
RCMP arrest man after report of gun-toting threat-maker near Parksville schools

43-year-old man taken into custody; students at nearby schools were asked to stay inside

The machines are akin to ATMs and allow drug users at risk of overdose to get hydromorphone pills dispensed to them after their palm has been scanned to identify its unique vein pattern. (CANADIAN PRESS)
Feds dole out $3.5M for ‘vending machines’ to dispense safer opioids in B.C.

The machines are located in four cities across Canada, including Vancouver and Victoria

Kelowna’s lakefront visitor centre is one of 130 around the province. Tourism businesses have been hardest hit by COVID-19 restrictions on travel. (Destination B.C.)
Tourism, small business getting COVID-19 help, B.C. minister says

$300M grant program has delivered $50 million so far

Most Read