Life after the Tsilhqot’in decision

Aboriginal title isn't land ownership in the fee-simple sense. It is defined as collective and non-transferable

Kwakiutl protest against logging

Kwakiutl protest against logging

VICTORIA – The Supreme Court of Canada’s landmark decision on aboriginal title held by the Tsilhqot’in 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 Tsilhqot’in decision upholds the key finding of the 2007 trial, that 1,700 square kilometres of the Nemiah Valley west of Williams Lake are essentially owned by the people who occupied it hundreds if not thousands of years ago.

It’s not quite ownership. Federal and provincial jurisdiction still applies, and their authority varies with the strength of the aboriginal title claim.

Chief Justice Beverley McLachlin ruled that the province overstepped its authority by issuing logging permits in the valley in 1983. McLachlin 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, one-time NDP leadership contender David Vickers, who rejected B.C.’s position that the economic value of the timber to the province overrode the then-vaguely defined aboriginal title.

Here’s McLachlin’s 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.”

That’s 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 Tsilhqot’in 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 Tsilhqot’in 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 Tsilhqot’in, 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 Tsilhqot’in 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 Press. Twitter: @tomfletcherbc

 

Just Posted

Kenny Podmore, here seen at Sidney’s cenotaph in November, says he feels for the veterans after organizers had to cancel an event acknowledging Victory in Europe (VE) Day for the second time in as many years because of COVID-19. (Wolf Depner/News Staff)
North Saanich event marking 75th anniversary of VE-Day cancelled

Sidney resident first planned event for May 9, 2020 moved to May 8 before being cancelled

Individuals and businesses are encouraged to bring their unwanted electronics to Tillicum Centre May 14 to be shredded, recycled or donated. (Black Press Media file photo)
Greater Victoria residents can shred, donate electronics safely

Vancouver Island Better Business Bureau hosts event May 14 at Tillicum Centre

Scheduling popular summer events like the Canada Day celebrations is difficult due to the pandemic. (File - Sooke News Mirror)
Sooke summer events schedule clouded by COVID

Public health guidelines hamper plans

The District of Sooke is looking at new plans to build a fenced dog park at Ponds Park Corridor. (Pixabay.com)
Sooke seeks input on dog park

Public comment welcomed until June 4

Victoria police responded to a vehicle where this dog was found in distress due to the heat after being left inside. (Photo courtesy of VicPD)
Hot cars can be fatal to dogs left inside, Victoria police reminds public after distress calls

Victoria police found two dogs in a car with an internal temperature of 47 C on Friday

Daily confirmed COVID-19 cases reported to B.C. public health, seven-day rolling average in white, to May 12, 2021. (B.C. Centre for Disease Control)
B.C. preparing ‘Restart 2.0’ from COVID-19 as June approaches

Daily infections fall below 500 Friday, down to 387 in hospital

The first Black judge named to the BC Supreme Court, Selwyn Romilly, was handcuffed at 9:15 a.m. May 14 while walking along the seawall. (YouTube/Screen grab)
Police apologize after wrongly arresting B.C.’s first Black Supreme Court Justice

At 81 years old, the retired judge was handcuffed in public while out for a walk Friday morning

Queen Elizabeth II and Clive Holland, deputy commonwealth president of the Royal Life Saving Society, top left, virtually present Dr. Steve Beerman, top right, with the King Edward VII Cup for his drowning-prevention work. Tanner Gorille and Sarah Downs were honoured with Russell Medals for their life-saving resuscitation. (Buckingham Palace photo)
Queen presents Vancouver Island doctor with award for global drowning prevention

Dr. Steve Beerman receives Royal Life Saving Society’s King Edward VII Cup at virtual ceremony

Former UFV Cascades wrestling coach Arjan Singh Bhullar is now the ONE heavyweight champion after defeating Brandon Vera via TKO in round two on Saturday in Singapore. (ONE Championship)
Former UFV wrestling coach wins MMA championship

Arjan Singh Bhullar captures ONE heavyweight title, first Indian origin fighter to achieve honour

Astra Zeneca vaccine waits for injection in a Feb. 3, 2021 file photo. A Langley man has become the second B.C. resident to suffer a blood clot following an injection. (AP Photo/Frank Augstein)
B.C. man required emergency surgery after AstraZeneca vaccination

Shaun Mulldoon suffered ‘massive blood clot’ after jab

Chilliwack’s Kile Brown, performing as drag queen Hailey Adler, dances and lip syncs in front of hundreds of people during the inaugural Chilliwack Pride Barbecue at the Neighbourhood Learning Centre on Aug. 24, 2019. Monday, May 17 is International Day Against Homophobia, Transphobia and Biphobia. (Jenna Hauck/ Chilliwack Progress file)
Unofficial holidays: Here’s what people are celebrating for the week of May 16 to 22

International Day Against Homophobia, Talk Like Yoda Day, Sea Monkey Day all coming up this week

Sinikka Gay Elliott was reported missing on Salt Spring Island on Wednesday, May 12. (Courtesty Salt Spring RCMP)
MISSING: Salt Spring RCMP find woman’s car, still seek Island resident

Sinikka Gay Elliott is 5’3” with a slim build and dark brown short hair

Tagen Marshall of Parksville is looking to raise funds for a new specialized van. (Submitted photo)
Wolf: Parksville’s Tagen Marshall inspires others, aims to invest in himself

VIU honour student with spastic quadriplegia cerebral palsy seeks help achieving big dreams

Most Read