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

Just Posted

Victoria teen killed on field trip near Sooke

Second youth also injured in falling tree incident at Camp Barnard

UPDATE: Firefighters bring Sooke wildfire under control

Firefighters have a wildfire that burned an area about 100x150 feet at… Continue reading

Oak Bay double murder trial: Blood splatter analyst says no shoe prints found in unit

RCMP analyst testifies to smears, fingermarks, ‘swipe and wipe’ patterns around apartment

Sooke club gets kicks out of karate

Sooke Martial Arts Association provides unique sports outlet

Langford has ‘no plans’ to make changes to Western Speedway after noise complaints

Flyer passed out to residents voices concerns over racetrack noise

VIDEO: ‘Avengers: Endgame’ to be re-released with new footage

‘Avatar’ holds global box office record at $2.788 billion, while ‘Endgame’ stands at $2.743 billion…

Elias Pettersson wins Calder Trophy as NHL’s top rookie

Vancouver forward first Canuck to win award since Pavel Bure in 1992

FVRD chair calls B.C. incineration plan for Philippines waste ‘disturbing’

Metro Vancouver ‘uniquely capable’ of safely disposing of waste coming back to Canada, say officials

VIDEO: Acknowledging skeptics, finance minister vows to build Trans Mountain project

Bill Morneau said he recognizes ‘huge amount of anxiety’ in Calgary over future of oil and gas sector

Shovels could be in the ground on Trans Mountain by September, CEO says

Ian Anderson points to weeks likely required for NEB to reinstate 2016 regulatory record

RCMP allows officers to grow beards

Members can now wear beards and goatees, as long as they’re neatly groomed

Sooke’s new library construction a sad tale

Reader says if the public library project was in the private sector, heads would roll

Girl, 10, poisoned by carbon monoxide at B.C. campsite could soon return home

Lucille Beaurain died and daughter Micaela Walton, 10, was rushed to B.C. Children’s Hospital on May 18

30 years later: B.C. woman uses sidewalk chalk to reclaim site of her sexual assault

Vancouver woman didn’t think her powerful story, written in chalk, would ignite such support

Most Read