E-notes Tsilhqotin Decision Part I

from [email protected] 6 July 2014 Edition

250 ANNIVERSARY OF THE TREATIES OF NIAGARA, 1764TH

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 andMail, Peter ONeil of the Vancouver Sun,

Tonda MacCharles of the Toronto Star, Miriam Katawaziof www.rabble.ca,, Randall Palmer of Reuters,

Dene Moore of Canadian Press

Ottawa, Ontario, 26 June 2014 The Supreme Court ofCanada may not have been conscious that it delivered itsend of denial legal earthquake game-changerdecision in Tsilhqotin on the 148 anniversary of thethBattle of the Little Big Horn.

Or that anyone thought about it being Canada DayWeekend.

But nonetheless, in a historic first for Canadian law, theSupreme Court of Canada has awarded title to theTsilhqotin people over a vast remote area in and aroundthe Nemiah Valley west of Williams Lake in the Chilcotinregion of the British Columbia interior where they havefought clear-cut logging efforts conducted with theapproval of the provincial government for nearly threedecades as part of a 150-year struggle. The last 20 yearshave been before the courts.

The History of the Case

The current chapter in the dispute over the Tsilhqot'in landbegan in 1983 when British Columbia granted CarrierLumber Ltd a license to cut trees in part of the Nationsterritory. The Tsilhqotin people objected and blockaded abridge the company was upgrading.

The Tsilhqotin launched blockades, forcing the provinceto begin talks which went nowhere.

The legal battle began in December 1989 with a filing byXeni Gwetin. The filing was amended in 1998 to includethe whole Tsilhqotin Nation.

The trial finally began in 2002 and ran for 339 days. Thetrial judge Justice David Vickers travelled to the claimarea, heard from elders, historians and experts while alsoreviewing historical texts, including the diaries ofAlexander Mackenzie and Simon Fraser.1

The decision William et al v. British Columbia et al, 20041

BCSC 964 (CanLII),

Tsilhqotin Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -2-an informative by [email protected] 6July 2014

Justice Vickers found that the Tsilhqotin were entitled toa declaration of Aboriginal title to about 40% of theirtotal claimed territory. Vickers was not able to make adeclaration of title on procedural grounds. He did,however, go on to consider how a declaration of titlemight affect forestry activities and other matters.

Justice Vickers devoted a significant portion of his reasonsfor judgment urging the parties to engage in the process ofreconciliation outside the courtroom. Instead, the provincialgovernment appealed his decision.

The B.C. Court of Appeal then faced the case and held thatthe Tsilhqotin had not established title and found thenation could only claim territory were evidence existed ofextensive use and occupancy. The Supreme Courteviscerated that position in its current ruling.

The unanimous 8-0 decision written by Chief JusticeBeverly McLaughlin adopts a broad, expansive approach toaboriginal title, saying the Tsilhqot'in have rghts to theland, the right to use the land and the right to profit fromthe land. The area is to the south and west of WilliamsLake in the B.C. Interior.

The 81-page decision begins with clear unequivocal words,I would allow the appeal and grant a declaration ofAboriginal title over the area at issue, as requested by theTsilhqot'in. I further declare that British Columbiabreached its duty to consult owed to the Tsilhqot'in throughits land use planning and forestry authorizations."

The text continued in straight-forward language. "Thenature of aboriginal title is that it confers on the group thatholds it the exclusive right to decide how the land is usedand the right to benefit from those uses.

Aboriginal title confers ownership rights similar tothose associated with fee simple, including: the right todecide how the land will be used; the right to theeconomic benefits of the land; and the right topro-actively use and manage the land, said the ruling.

The Supreme Court said that aboriginal title is unlikeindividual property ownership. The ruling said Aboriginaltitle came with an important restriction, that it is collectivetitle held not only for the present generation, but for allsucceeding generations. It cannot be . . . encumbered inways that would prevent future generations of the groupfrom using and enjoying it. Nor can the land be developedor misused in a way that would substantially deprive futuregenerations of the benefit of the land.

The high court returned to the theme of reconciliation, andemphasized 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 anative group that has it. In 1997, the Supreme Court saidtitle means a right to possession of land that goes beyond

A chronology of events in the Xeni-Gwet'incourt case over aboriginal title:

April 18, 1990: Xeni Gwet'in Chief RogerWilliam, on behalf of Tsilhqot'in Nation, filesaction in B.C. Supreme Court seeking adeclaration of aboriginal title over 438,000hectares in B.C.'s Cariboo-Chilcotin region. Thecase is called the "Nemiah Trapline Action."

Dec. 18, 1998: William launches a second case,the "Brittany Triangle Action," over forestryactivities in Tsilqhot'in territories.

Nov. 18, 2002: Trial begins in B.C. SupremeCourt.

April 7, 2007: Trial ends.

Nov. 20, 2007: B.C. Supreme Court Judge DavidVickers issues his ruling. All parties Williams,the province and the federal government appeal.

Nov. 15, 2010: B.C. Court of Appeal begins tohear arguments.

June 2012: Appeal Court upholds right to hunt,trap and trade in traditional territory but finds titlecan only be claimed in areas occupied or usedintensively by the "semi-nomadic" people.

Jan. 2013: Supreme Court of Canada announces itwill hear appeal filed by William.

Nov. 7, 2013: Country's highest court hearsarguments.

June 26, 2014: Supreme Court of Canada releasesdecision upholding aboriginal title.

Copyright Times Colonist


the right to hunt and fish on it. But its actual existence ona particular site had not been recognized by a courtdecision. It has, however, been acknowledged by historicaltreaties and modern land claims agreements.

A Breach of Fiduciary DutyThe Supreme Court found that B.C. breached its fiduciaryduty to consult with the Tsilhqotin and that it had noeconomic justification for issuing logging permits in theclaimed territory, which sparked the over-two- decadebattle. The province argued that it stood to benefiteconomically from logging in the claimed area and alsothat it needed to stop the spread of a mountain pine beetleinfestation.

Granting rights to third parties to harvest timber onTsilhqotin land is a serious infringement that will notlightly be justified, said the ruling. Should thegovernment wish to grant such harvesting rights in thefuture, it will be required to establish that a compellingand substantial objective is furthered by such harvesting,something that was not present in this case.

Back in 1997, Canada's top court had ruled thataboriginal peoples were entitled to exclusive propertyrights as they occupied land before European powersexerted sovereignty. But legal scholars said the 1997judgment failed to make clear what aboriginals needed todo or demonstrate before they could obtain such propertyrights. The judgment Thursday, which pitted theTsilhqot'in Nation against the provincial government ofB.C., offered the clarity legal experts sought.

The decision was a major victory for the Tsilhqotin,expanding their rights to claim possession of ancestrallands and to control those lands for all time. TheTsilhqotin said in a prepared statement that the rulingis a step forward toward reconciliation between thegovernment and First Nations. Resolving Aboriginaltitle reduces conflict, creates the opportunity forrespectful relations and ends an era of denial.

The right to control the land conferred by Aboriginal titlemeans that governments and others seeking to use the landmust obtain the consent of the Aboriginal title holders,the court said. If the Aboriginal group does not consent tothe use, the governments only recourse is to establish thatthe proposed incursion on the land is justified under theConstitution.

Indeed most of the provinces territory is subject to similartitle claims in the absence of treaties governing relations

between First Nations and the Crown.

Thus the decision has implications for future economic orresource development where title is held by First Nations.

The high court endorsed the view of the late B.C. SupremeCourt trial judge David Vickers, and said aboriginal titlewill flow where native groups can show their occupation ofland in the sense of regular and exclusive use. Thenature of Aboriginal title is that it confers on the group thatholds it the exclusive right to decide how the land is usedand the right to benefit from those uses, subject to therestriction that the uses must be consistent with the groupnature of the interest and the enjoyment of the land byfuture generations.

The decision upset a B.C. Court of Appeal ruling in 2012which said there was a need to search out a practicalcompromise that can protect aboriginal traditions withoutunnecessarily interfering with Crown sovereignty and withthe well-being of all Canadians.

The Court of Appeal agreed the Tsilhqot'in had sweepingrights to hunt, trap and trade in its traditional territory. Butit also agreed with the federal and provincial governmentsthat the Tsilhqot'in must identify specific sites where itspeople once lived, rather than assert a claim over a broadarea. This narrow definition of aboriginal title referred tointensive presence at a particular site, such as salt licksand rocks used for fishing.

The Tsilhqotin told the Supreme Court that the appealcourts narrow postage stamp definition made a mockeryof aboriginal title. That approach was a blueprint forconflict and discord, not reconciliation, the Tsilhqotinsaid in their appeal to the Supreme Court of Canada.

is published as a service of FourArrows/Las Cuatro Flechas, providingcommunications among First Nations of theAmericas since 1968. Names may be added tothe distribution list on requests; names willbe removed on request. Four Arrowsreceives no funding to provide this service.Readers are invited to send material forpublication in .


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 scholarshipthat Aboriginal title is confined to specific village sites orfarms, as the court of appeal held, said the ruling.Rather, a culturally sensitive approach suggests thatregular use of territories for hunting, fishing, trapping andforaging is sufficient use to ground Aboriginal title.

The high court said that Aboriginal title could be declaredover territory over which the group exercised effectivecontrol at the time of assertion of European sovereignty.

The Tsilhqot'in, a collection of six communities thatinclude about 3,000 people, argued the court's decisionfailed to recognize the way its people had lived forcenturies. They had few permanent encampments, eventhough they saw the area as their own and protected itfrom outsiders.

The ruling is a win for Roger William, the chief who inthe name of his Xeni Gwetin First Nation Governmentlaunched the current title claim. The rest of the bandsjoined his bid to expand the Tsilhqotin title over a largetract of land, approximately 4,380 square kilometres. Thearea is not subject to any competing claim by another FirstNations 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 canclaim 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 habitationon the land; 3) exclusivity in area.

The court also established what title means, including theright to the benefits associated with the land, and the rightto use it, enjoy it and profit from it. Governmentincursions not consented to by the title-holding group mustbe undertaken in accordance with the Crowns proceduralduty to consult, said the ruling. And must also bejustified on the basis of a compelling and substantialpublic interest and must be consistent with the Crownsfiduciary duty to the Aboriginal group.

The court declared that where title is asserted but hasnot yet been established, the government needs toconsult in good faith with the aboriginal group inquestion and accommodate it where appropriate. Onceaboriginal title is established, economic developmentcan proceed as long as it has the consent of the FirstNation. Failing that, the government must meet a

proportionality test: it must show a law is necessaryto achieve a pressing, substantial, and important publicpurpose. Even then, it must go no further thannecessary to achieve that specific goal and that thebenefits that may be expected to flow from that goalare not outweighed by adverse effects on the Aboriginalinterest.

We meant war, not murder(Thanks to APTN National News for this information)

The Tsilhotin defence of their territory began withsettlement. It has not always been conducted through thecourts. During a press conference in Vancouver, some ofthe Tsilhqotin leaders referred to the 1864 Chilcotin Warthat ended in the death of at least 19 European settlers andthe hanging of six Tsilhqotin chiefs.

Back then they faced a planned toll wagon road aimed atconnecting the nascent colonys Pacific coast through ButeInlet to the newly discovered gold fields of Williams Creek,in the B.C. interior.

The project threatened the already besieged Tsilhqotinpeople facing their first major outbreak of smallpox, spreadlargely by infected blankets sold by traders.

These white people, they bring blankets from people whodie of smallpox, said former Tsilhqotin chief HenrySolomon, in an oral account of the small pox outbreakcontained in a book called Nemiah: The unconqueredcountry, 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, themblankets. Pretty soon he got them sickness, and pretty soonthe whole camp got it. So pretty soon my grandmother andhis 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 Tsilhqotingirls. The Tsilhqotin who worked with the crews weremistreated and denied food.

Then, in the spring of 1864, four bags of flour were stolenfrom a road crews base camp. The crews foremanthreatened the Tsilhqotin with smallpox for stealing.

Journalist Melvin Rothenburger, who wrote a book calledthe The Chilcotin War, believes this threat may have helpedspark the war. That could have been an important factor


because of the fear of smallpox and it had been rampant,said Rothenburger, whose great-great grandfather DonaldMcLean was killed in the ensuing battles with theTsilhqotin.

News of the smallpox threat and rapes stirred a group ofTsilhqotin to launch what turned into a guerilla waragainst the settlers. Of this group, a war chief known asKlatsassin or Lhatasassine, meaning We do not know hisname, 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 hisparty passage.

The next morning, at daybreak, Klatsassin and his warparty 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, theforeman who issued the smallpox threat was killed alongwith three other men.

The Tsilhqotin used their knowledge of the rugged terrainto their advantage, setting traps, launching ambushes andeluding colonial parties for weeks that had been sent intothe bush to track them down.

Rothenburgers greath-great grandfather McLean met hisdeath after falling into a trap set by the Tsilhqotin.McLean followed a trail of wood shavings carved by theTsilhoqotin that led to an ambush. McLean, known to theTsilhqotin as Samandlin, wore a breast plate forprotection, said Rothenburger.

The Tsilhqotin knew about this and set it up so theycould get behind him, said Rothenburger.

With the colony ramping up efforts against the guerillas,the Tsilhqotin sought to negotiate peace. Believing theyhad been granted immunity, Klatsassin and a group ofchiefs travelled to meet with Frederick Seymour, then thegovernor of the colony of British Columbia.

They were shackled in their sleep and taken prisoner.Klatsassin and four others were convicted of murder. Theywere 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 werealso arrested and sentenced to death. One managed toescape, but the other man named Ahan, was hung in NewWestminster on July 18, 1865.

To this day, the Tsilhqotin are still trying to recover hisremains.

The provincial government apologized for the hangings in1999.

Postscript: John Robson, editor of the New WestminsterColumbian, who would later go on to serve as premier ofthe province, warned at the time: Depend on it, for everyacre of land we obtain by improper means we will have topay for dearly in the end, and every wrong committedupon those poor people will be visited on our heads.


The Initial Reaction to the DecisionGrand ChiefStewartPhillip,president ofthe Union ofB.C. IndianChiefs, waswith ChiefRogerWilliam, whobrought thecase, andotherTsilhqot'inchiefs when

they learned of the top court's decision, and said the moodin the room was "absolutely electrifying." "We all heardthe decision at the same moment, and the room justerupted in cheers and tears. Everybody is absolutelyjubilant. It's very emotional," Phillip told CBC News. "Itonly took 150 years, but we look forward to a muchbrighter future. This without question will establish a solidplatform for genuine reconciliation to take place in BritishColumbia.

"Its a game-changer we are in an entirely different ballgame, Phillip added. "I didn't think it would be sodefinitive I was actually prepared for something muchless. It's not very often that I'm without words, and I'mquite overwhelmed at the moment."

"This is the end of denying rights and title," Chief JoeAlphonse, Tsilhqot'in tribal chairman, said in astatement. "This case is about us regaining our independ-ence, to be able to govern our own nation and rely on thenatural resources of our land. We are ready to moveforward in this new relationship with government andindustry. That work starts today. Chief Alphonse calledthe ruling amazing and said it marked the beginning of anew Canada.

Chief Alphonse said the ruling also sent a message toCanadas political leaders. It sends a strong message to allprovincial leaders and Stephen Harper to deal with us in anhonourable and respectful way, he said. This decisionwill bring much needed certainty for First Nations,government and industry. You want certainty for yourinvestors to come into British Columbia and Canada? Thendeal with us as First Nations people, deal with us in ameaningful way, in a respectful way."

Bernie Mack, one of six Tsilhqotin chiefs, left no doubtthat proponents and governments will have to demonstratea substantial and compelling public purpose to gain theconsent of First Nations. The days of easy infringementare gone, he said.

Art Sterritt, executive director of the Coastal FirstNations, said the ruling puts the onus back on governmentto consult with First Nations and not industry. Itsabsolutely a wonderful day for First Nations.""The federalgovernment had punted it over to Northern Gateway andnow we know that if youre going to do projects likeNorthern Gateway, they need our declaration and if theydont have that we can declare that project dead.

Ghislain Picard, Regional Chief for Quebec/ Labradorsaid, On behalf of the First Nations across the country, weextend our congratulations and convey our gratitude toChief Roger William, the Xeni Gwetin and the TsilhqotinNational Government for their leadership and determina-tion in bringing this case forward and taking on thischallenge over the past 25 years..

This is truly a landmark decision that compels us all toembark on a new course. The court has clearly sent amessage that the Crown must take Aboriginal title seriouslyand reconcile with First Nations honourably. This decisionwill go down in history as one of the most important andfar reaching ever rendered by the Supreme Court ofCanada. Theyll be greater partnership. Theyll be morecoming from our people what we are willing to do andhow we are going to do it and how its going to happen.

photo by Darryl Dyck, The Canadian PressGrand Chief Stewart Phillip, of the Union ofB.C. Indian Chiefs, smiles during a newsconference in Vancouver, B.C., after theSupreme Court of Canada ruled in favour ofthe Tsilhqot'in First Nation/

photo by Nick Procaylo, PNGTletinqox Chief Joe Alphonse speaks at a news conferencewhere The Union of B.C. Indian Chiefs reacted to the landmarkSupreme Court Williams decision.


Xeni Gwetin Chief Roger William , whose name was2used in the original filing responded to the decision bysaying, We take this time to join hands and celebrate anew relationship with Canada. We are reminded of ourelders who are no longer with us. First and foremost weneed to say sechanalyagh (thank you) to our TsilhqotinElders, 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, thosewho celebrate with us, those who drum with us.

Chief William expressed not only thanks but relief thattheir engagement in good faith with Canadas highestcourt on this matter had been met with respect. FirstNations across this country have taken legal action,entered into treaty, practised their language anddemonstrated use of the land and through this they havesupported us we thank you.

Lake Babine Nation Chief Wilf Adam said the decisionconfirmed that aboriginal title is a reality in B.C., and thatit extends well beyond First Nations traditional villagesites. The First Nation of 2,400 members is also opposedto the Northern Gateway project, and has had concernsabout mining projects. In my opinion on this decision,Northern Gateway is dead, said Adam. They will neverget approval from us.

He stressed that governments, and companiesthat want to develop in Lake Babinestraditional territory, must acknowledge itsaboriginal title by engaging respect-fully andproposing meaningful accommod-ation. At aminimum, this means that any developmentmust be sustainable and safe for our land andresources, and that it must provide significanteconomic benefits to Lake Babine, saidAdam.

Haida Nation president Peter Lantin said theTsilhqot'in case strengthens his islandcommunity's title claim, which is beingprepared for trial. The Haida claim includes thesurrounding ocean off B.C.'s North Coast,

which Lantin expects to use against plans for oil tankersfrom the Enbridge Northern Gateway proposal.

Perry Bellegarde, chief of the Federation ofSaskatchewan Indian Nations, says the Supreme Courtruling on land rights bolsters arguments for revenue sharingwith First Nations. "We've always said we should mutuallybenefit from the land and resources. With this decision, itwill breathe more life into that concept of resource revenuesharing."

Jody Wilson-Raybould, AFN Regional Chief of B.C.,said the decision means we now have the opportunity tosettle, once and for all, the so-called Indian land questionin B.C. and elsewhere in Canada where Aboriginal titleexists through good-faith negotiations. This has to be awakeup call for governments, both provincial and federal,and we look to Mr. Harper to actual-ly see this as thefundamental impetus to sit down at the table andmeaningfully move towards reconciliation.

Federal Indian Affairs Minister Bernard Valcourt saidin a statement that the government will review the"complex and significant issues" in the decision. "Ourgovernment believes that the best way to resolveoutstanding Aboriginal rights and title claims is throughnegotiated settlements that balance the interests of allCanadians," Valcourt said in the statement, adding that thegovernment has concluded four treaties in B.C. since 2006,with others under negotiation.

Mr. Valcourt did not explain why, if the government feltnegotiated settlements were the best way to tell with FirstNation claims, the federal government had refused to

Communications with the Tsilhqotin Nation are through2

Myanna Desaulniers, Communication Coordinator, Tsilhqot'inNational Government, 253 4th Avenue North, Williams Lake,BC V2G 4T4, Phone (250) 392-3918 Fax (250) 398-5798

Xeni Gwetin Chief Roger William


negotiate settlement based on aboriginal title, and hadopposed the William case for so many years.

NDP critic Jean Crowder welcomed the ruling and saidthe governments at both levels have for too long taken thechance that aboriginal title would never be recognized ingoing ahead with development. "Now, all levels ofgovernment will need to stop and consider whether or notthey've met the duty to consult or justified aninfringement. Governments will have to meet thisobligation so development can continue, with FirstNations determining how to use the land, not third-parties,to the benefit of many Canadians."

Ms. Crowder said the court ruling shows the federalgovernment should set up a protocol for First Nationsconsultation on future resource development projects, sothat everyone is aware of the proper duty to consult andobtain aboriginal consent.

It would be a way better process if you had that protocolin place and First Nations were at the table right from theoutset so that you didnt get to the permitting and approvalstage only to be told, Oops we need to go back now anddo the consultation that if we had of done three years agowe might not be in this spot,' said Crowder. Companiesthen understand exactly what they have to do."

The court also said governments may have to reassessprior conduct and legislation, which could prompt courtchallenges of past government actions, includingcontroversial 2012 amendments to the CanadianEnvironmental Protection Act and the Navigable WatersProtection Act, Crowder said in a statement.

Liberal aboriginal affairs critic Carolyn Bennett saidthe landmark decision reaffirms "that governments cannotavoid their constitutional duty to consult and accommo-date the rights of Indigenous Peoples across Canada."

B.C.s Attorney General, Suzanne Anton called thedecision significant and helpful but was vague abouthow so, even though the government was well aware theruling was coming. Were taking time to read thisdecision and to analyze it. What I can tell you from theprovinces point of view is our very strong commitment tocontinuing to work with First Nations.

As for treaty negotiations, Anton would only say they willcontinue. She said the government would continue to workon environmental issues with aboriginal groups, but said

Northern Gateway approval, opposed by many aboriginalgroups, remains off the table. We will not consider thatpipeline until that condition is met, Anton said. She saidthe decision provides additional clarity but she urged allparties to continue with treaty negotiations. We all knowthe success that comes when we choose to negotiate ratherthan litigate.

Saskatchewan Ministry of Justices Aboriginal Lawofficials say the ruling will have little effect in thisprovince, and the position on resource revenue will notchange. "This decision won't have an impact inSaskatchewan," said Sonia Eggerman.

Saskatchewan Cabinet spokesperson Karen Hill said,"The resource revenues collected by the Government ofSaskatchewan are shared with all residents as they provideimportant services for all Saskatchewan people, includingFirst Nations."

Alberta Ministry of Aboriginal Relations spokesmanMartin Dupuis told Bloomberg BNA that the governmentis reviewing the ruling. It would be premature to commenton it in detail at this time, he said. Alberta continues tomaintain open and productive dialogue with Aboriginalcommunities and our colleagues across Canada to addressaboriginal issues.

The decision will lead to intensified negotiationsbetween the federal and provincial governments and FirstNations over land title claims, says Gordon Christie,associate professor of First Nations legal studies at theUniversity of British Columbia. I think the Court hasbeen signalling that for many years now, that they just wishthat the provinces and the federal government would gettogether with aboriginal communities and negotiate thesematters, Christie told CTV News Channel on Thursdaymorning.

And what theyve essentially done today is give FirstNations the kind of negotiating stance they need for thisto actually happen. . . We won't really know theimplications, I think, probably for a number of years,maybe a decade or so.

Until yesterday, we didn't actually have any piece ofland in Canada that was clearly held under aboriginaltitle. We knew it existed but we hadn't had any FirstNation that actually was able to establish that they hadtitle to a piece of land. That's changed. So we now knowthat it's possible finally."


Prof. Dawn Mills, from the University of BritishColumbia's Department of Mining Engineering, saidthe decision is an opportunity for industry to work withFirst Nations to evolve. "This is an opportunity tocritically look positively not negatively to lookpositively at best practices," she said. The mining industrymodel was already changing, Mills said. First Nationshave been open for discussion and open for business, shesaid. "It's not business as usual but I think it's betterbusiness than usual."

Prof. William Lindsay, director of the office ofaboriginal affairs at Simon Fraser University said thatgovernments 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 knowwhere the clout lies and people have to get together andwork through these issues."

West Coast Environmental Law attorney Jessica Cloggtold Bloomberg BNA the ruling could impact energypipeline projects such as the Enbridge Northern GatewayPipeline and Kinder Morgan's Trans Mountain pipelinetwinning, both of which would move oil to Canada's westcoast.

Clogg said the court established strict environmental rulesthat neither aboriginal nations nor governments can doharm land for future generations. She said that in caseswhere consultation on projects is in question, the govern-ment may be required to begin those processes over.

Because there are indigenous people really blanketing allof 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 forIndian Affairs, told Travis Lupick of Straight.com, Thisruling is an expression of the culmination of the rise ofNative empowerment. Currrently, industries looking toexploit resources on First Nations territory are advancingtheir economic interests through exploiting thetraditional territories of the most disadvantagedcommunities in the country. And they have beenmassively empowered by this ruling

Gallagher said the decision has provided clarity andcrystallized issues that have been debated and appealedin many previous cases. This is the capstone ruling, hesaid. They have written this case up in such a legallybulletproof fashion that it is a masterpiece of

aboriginal-law jurisprudence. Gallagher argued thatstakeholders, including corporations, should therefore viewthe Tsilhqotin decision as a liberating experience.

They now at least know what is expected of them: toaddress First Nations one on one, to extend a hand ofcorporate friendship, he said.

Gallagher predicted the days of industry relying ongovernment to settle disputes with First Nations willbecome a thing of the past. Theyll have to now go out andbring First Nations on as partners, he said.

Canadas Atlantic provinces were the first areas settled bythe British. There the British were outnumbered by FirstNations who included Mikmaq and the Maliseet, and sooften focused on signing peace and friendship treaties the primary purpose of which was to tamp down hostilitiesbetween First Nations and colonizers. In 1999 the SupremeCourt ruled that these treaties had no application forsettling land issues on unceded land. Gallagher believesthat Tsilhqotin is likely to set precedent for these claims aswell.

Bob Johnstone, writing in the Regina Leader-Post, saidthe decision will likely give encouragement to FirstNations, like the Athabasca Chipewyan First Nation, whichis suing the Alberta and federal governments over potentialenvironmental damage and alleged adverse health affectsfrom oilsands developments upstream in Ft. McMurray.

Also, much of the land required by the Northern Gatewayproject in B.C. is not covered by treaties, but the SupremeCourt ruling make its clear that aboriginal title will requirerigorous negotiations between the First Nations, thegovernment and the proponent, Enbridge. Saskatchewan,which is covered by treaties, will not emerge unscathed bythe Supreme Court ruling.

Calgary lawyer Allisun Rana represents a number ofBritish Columbia First Nations whose land covers amassive shale gas deposit that companies such asTransCanada Liquified Natural Gas would like to exploit.

She told Elizabeth Grant of Open Democracy that shecredits the Supreme Court with recognizing the need forstronger direction and greater clarity throughout Canadascourts in the face of myriad legal actions attempting to stopresource development on First Nations land: They see a lotof [these Aboriginal cases opposing resource development]and again, again, First Nations have to return to the court. Ifthis doesnt tell governments what they should be doing,nothing will.


Quebec Aboriginal rights lawyer James OReilly hasrepresented a variety of First Nations in Quebec including the Cree and Innu. According to him, landclaims are currently being negotiated by nine separategroups in Quebec and despite the fact that the ruling isnot expected to apply to more developed areas that are nolonger used traditionally he believes that up to 40% ofQuebecs contested territory could be determined by thisruling.

Brad Armstrong, a partner with law firm LawsonLundell LLP in Vancouver, told Drew Hasselback of theFinancial Post, This decision [will result] in reasonablylarge tracts of land in the province [being] privatized.They will be held by First Nations, and they will have theexclusive right to determine howe those lands will beused.

In any case, the era of "business as usual" in dealing withFirst 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 manyAlberta court cases between First Nations and govern-ments over oilsands development, lawyers say. "I canthink of a few law firms that are probably redrafting theirbriefs right now," said Larry Innes, a member of aToronto law firm representing the Athabasca Chipewyan,downstream from the Fort McMurray region.

Roger Townshend, a member of the same firm, saidwhile the Tsilhqot'in decision didn't break any new legalground, it did show the court wants governments tointerpret aboriginal rights broadly on traditional lands."Really what was happening was Canada and B.C. wereinterpreting those doctrines in an extremely narrow andrigid 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 anumber of Alberta bands, said the court has raised the barfor governments seeking to approve major developmentsthat could infringe on aboriginal land-use rights. "Thecourt seems to be sending quite a strong message thatinfringement should not be allowed to drift to being ageneral public-interest type of analysis," he said.

"It's expected to be more rigorous than how it's beenapproached in the past. Likewise, the duty to consult is notintended to be a polite chit-chat and do what you'replanning to do anyway."

The Alberta and federal governments are facing a numberof court actions that attack many of the recent changesmade to regulating energy development. Many involveissues around aboriginal consultation, consent and theimpact of development on treaty rights.

The Beaver Lake Cree, for example, are in court arguingthat so much piecemeal development has been approved ontheir lands that their treaty rights are increasinglymeaningless an issue close to the heart of the decision,said Innes. "When (governments) consider the publicinterest they must do so in a way that balances the rights ofall Canadians with aboriginal rights," he interprets.

"You can't simply do it on the basis of what's good for theeconomy. You cannot, as a Crown, go in and say 'It's goodfor the guys in Calgary, too bad about Fort Chipewyan.'You actually have to turn your mind to what would be thebest outcome for both."

Although B.C. has few treaties, Janes agreed the Tsilhqot'inruling will be a factor in the Alberta cases. "We willcertainly be using it in our arguments."

When you get to stage where you're looking at theselarge-scale developments inAlberta which potentiallyinfringe rights, then the court's saying you're going to beheld to a very high standard. There has to be a compellingpublic purpose."

Innes said he expects to cite the judgment at regulatoryhearings into TransCanada's Grand Rapids pipeline projectfrom Fort McMurray to Edmonton, now under way.

"The validity in which the way consultation issues areaddressed by the Alberta Energy Regulator or rathersummarily dispensed with by the Alberta ConsultationOffice is what we're putting forward," he said. "There is noway in way in hell that the process that has been set upcould possibly meet those duties."

by Wendy Steuck

Supreme Court land title ruling may open upFirst Nations financing

Vancouver, 2 July 2014 A landmark legal decision by theSupreme Court of Canada involving aboriginal title israising speculation about whether the newly-affirmed titlecould be used as leverage to obtain financing or negotiatewith companies that want to build, say, a wind orhydro-power project on the land in question.


Before [the ruling], we had two types of land in theprovince fee simple and Crown land, says DavidAustin, a Vancouver lawyer. We now have a third concept aboriginal title land. . . but given thataboriginal title is held on a collective basis, it would notlikely 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 theiraboriginal title lands for security for money required foreconomic development, Mr. Austin said. But I am veryconfident that this problem can be worked out.

Joan Young, a partner with McMillan LLP law firm inVancouver is less convinced. I dont see a bank relyingon that [aboriginal title] in terms of advancing funds to aFirst Nation, Ms. Young said. If youre thinking withyour bankers hat on, you would ask, Do I give money tosomebody when another party can still go in there and useit for another purpose? Probably not.

Pipelines. Gold mines. Liquefied natural gas. Coal. Logging. Fisheries

The list of British Columbia natural resource projectspotentially affected by a landmark ruling from theSupreme Court of Canada is long and lucrative. Andindustry, policy-makers and indigenous leaders alike willbe sorting through the fallout from the decision onaboriginal title for some time to come.

A coalition of B.C. business groups had intervened in thecase, telling the Supreme Court that a wide definition oftitle would threaten the economy. The provinces right toapprove projects to develop natural resources was inquestion aboriginal title lands are no longer to beconsidered Crown land.

The coalition commented the ruling will be read with greatcare by industry, native groups, claim negotiators,governments and lower courts alike and will haverepercussions for years to come in all kinds of resourcedevelopment projects, such as the Northern Gatewaypipeline, on contested lands in all parts of Canada.

Alex Ferguson, VP of policy and environment for theCanadian Association of Petroleum Producers, toldBloomberg BNA the ruling gives clarity on consultationon developments. Moving forward, he said, companiesneed to examine their work to ensure they are engaging inproper consultation with aboriginal groups.

David McLelland, chairman of the Association forMineral Exploration British Columbia (AME BC), said in

a June 26 news release the ruling affirms the government'sduty to consult and accommodate. Members of AME BCrecognize that respectfully engaging with First Nationsearly and often creates mutual understanding, trust andrespect, McLelland said. We have seen that mutualbenefits can often occur when this approach is taken byeveryone involved, including industry, First Nations andgovernment.

News On The International Markets Too

In an article by Paul Vieira, the Wall Street Journal said thehistoric ruling could have repercussions for resourcecompanies operating in the country. It would haveramifications across the country where there are unresolvedland claims between Canada and aboriginal groups. . . theruling opens the door for other aboriginal groups withunresolved land claims to seek title now that there is abetter understanding of the evidence required. However,legal experts say this could take years amid negotiations orlegal battles with governments.

British Columbia has hundreds of unresolved land claims.The decision adds conditions, however, that would beexpected to make it more difficult, although not necessarilyimpossible, for developments such as pipelines, mines andforestry to proceed without aboriginal consent.

There are no new pipelines being proposed to pass throughthis particular area. Enbridge Inc's planned NorthernGateway pipeline route lies well to the north. However thedecision could stiffen the resolve of native groups to try toblock projects or demand extra concessions.

Natural resource companies had warned would createinvestor uncertainty and that recognition of broaderterritorial title would undermine their ability to attractcapital 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 [email protected],Vancouver Sun

Vancouver, B.C., 27 June 2014 B.C. businesses worry alandmark high-court decision that broadens First Nationsland rights could create barriers to development and stallkey industrial projects worth billions of dollars.

Proposed projects that could be affected include Enbridges$7.9-billion Northern Gateway oil pipeline, KinderMorgans $5.4-billion Trans Mountain oil pipeline, and


tens of billions more in liquefied natural gas plants andgas pipelines.

Mining and forestry projects could also be at risk.

However, industry representatives also cautiously offeredthe opinion that the decision could provide more clarity onhow resource development must be conducted with FirstNations, which could end up being a positive for theprovince.

The unanimous Supreme Court of Canada ruling largelyaccepted a 2007 B.C. Supreme Court interpretation ofwhat aboriginal title means for the Tsilhqotin in centralB.C., rejecting a far more narrow view delivered by theB.C. Court of Appeal in 2012. Ultimately, it granted theTsilhqotin title to 1,750 square kilometres of largelyundeveloped land.

A person could be optimistic about it and say this helpsclarify the ground rules Maybe this is going to helpprojects move forward, said Lael McKeown, a pastpresident of the Kitimat-Terrace Industrial Society and aconstruction business owner with her husband Dave.

The other thing is, there should be an expectation thatFirst Nations, as they are given more control of the land they also assume the responsibility of maintaining a levelof resource development so we can sustain our economy,said McKeown.

Terrace and other northwest B.C. communities such asKitimat and Prince Rupert are just emerging from aserious downturn in the forest sector with the help ofprospective LNG projects (backed by global energyheavyweights such as Petronas, Shell and Chevron), butalso a rebuild of Rio Tintos aluminum smelter, ImperialMetals Red Chris gold and copper mine and theprospective Northern Gateway oil pipeline.

With the LNG possibilities, this is the first time theresbeen huge optimism in the area. It would be prettydampening to have (the court decision) stall some LNGprojects because we only have a small window ofopportunity to make them happen if we are going to getour niche of global market, said McKeown.

Obviously this decision has a big impact on resourceextraction, she said.

Other B.C. businesses and industrial groups said Thursdaythey were still reviewing the decision given its complexityand ramifications for business and industry, issuing astream of cautiously-worded statements.

Our initial view is that todays Supreme Court decision is

an important clarification of aboriginal title and providesfor greater certainty around the application of provinciallaw 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 reachedhundreds of beneficial agreements with First Nations, andthe province is using tools such as revenue-sharing toreconcile economic activity with aboriginal rights and title.

Council of Forest Industries president James Gorman.warned that regulatory certainty is a critical factor in theforest industrys ability to do business. Todays decisionfurther emphasizes the importance of working closely withFirst Nations and building on the important relationshipswe have worked hard to establish over the past decades.

Mining Association of B.C. president Karina Brinoacknowledged the decision confirms that resourcedevelopment over land where aboriginal title is assertedmust, by law, be preceded by meaningful consultation.

Kinder Morgan Canada president Ian Anderson said thedecision aligns with the value the company places ondeveloping strong relationships with its aboriginal partners.We aim to connect directly one-on-one with aboriginalcommunities to address concerns, and look foropportunities with mutually beneficial outcomes, he said.

Davis LLP Forestry Law Bulletin says that withinTsilhqotin is the spectre for lawsuits on account ofdamages for timber harvesting under the authority of theForest Act prior to a declaration of Aboriginal title. Whilesufficient consultation and accommodation may minimizedamages in any particular instance, the problem is thatmost, if not all, Crown lands subject to harvesting rightsunder the Forest Act are likely also subject to some claimto Aboriginal title.

With the Tsilhqotin Nation Decision, the Supreme Courtof Canada has demonstrated that even a nomadic FirstNation with a relatively sparse population can succeed witha claim of Aboriginal title over a relatively expansive tractof land.

This result will undoubtedly have some effect upon theCrowns contingent liability calculus.

Early Actions

Within hours after the ruling, the Tahltan Central Councilannounced its intention to prepare its claim against theProvince of British Columbia and Fortune Minerals Ltd forthe controversial $789-m Fortune Minerals ArctosAnthracite Coal project proposed for Mt. Klappan in the


Klappan area of Tahltan territory. It has retained JosephArvay, Q.C. of Farris & Co. to lead the litigation team.

The Arctos Anthracite Coal project is located in acritically important area that requires long-termmanagement and protection to preserve cultural andecological values for the Tahltan people. Mount Klappan,which is part of an area known as Sacred Headwaterswhich feeds three of the regions major salmon-bearingrivers the Skeena, Stikine and Nass. The Tahltan peopleare 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 forachieving a historic win before the Supreme Court ofCanada in the William decision on Aboriginal Title. Weare optimistic that in the face of this game changing courtdecision, the federal and provincial governments will nowquit stalling and get on with negotiating a formalconsultation and accommodation protocol with our threeFirst Nations regarding land-use planning and naturalresource development on our Aboriginal Title territories, "said Chief Terence McBride of Timiskaming.

Chief Harry St. Denis of Wolf Lake said as a consequenceof 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 AboriginalTitle and Rights."

The territory covered under this Statement of Assertion ofRights and Title, measuring over 34,000 squarekilometres, straddles the Quebec-Ontario border along theUpper Ottawa River with a large portion of it located inOntario. The evidence, which has been in preparation foralmost 20 years, shows that these communities aredescended from the Algonquin bands that traditionallyused and occupied the territory.3

Kwakiutl Nation Puts Douglas Treaties On Notice

The Tsilhqotin ruling reaffirms that the 1851 VancouverIsland Douglas Treaties proves Aboriginal title, saidChief Coreen Child in a public statement issued July 2.

We are deeply moved by the resolve of the Tsilhqotinpeople. The ruling will have far reaching impacts on First

Nations and the Crown governments. For Kwakiutl, theSupreme Court of Canadas declaration

The Kwakiutl had intervened on the Tsilhqotin case toaddress two fundamental issues the proper test ofAboriginal title and the application of provincial legislationon Aboriginal title lands.

The Tsilhqotin win reinforces a BC Supreme Courtdecision, made on June 17, 2013, which found the Provinceof British Columbia had breached its legal duties bydenying the existence of Kwakiutls inherent title andtreaty rights. Further, the BC decision found that BC and4Canada had failed to implement and respect the Crowns163 year-old Douglas Treaties, and encouraged andchallenged the governments to begin fair negotiationswithout any further litigation, expense or delay.

"The Supreme Court of Canada rejected the "small spots"strategy argued by Canada and recognized and affirmedthat 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 theremoval of private lands from Tree Farm licenses locatedwithin Kwakiutl territory without Kwakiutl consent.Consequently, businesses, companies, and governmentshave exploited Kwakiutl lands with impunity.

BC forestry decision-making is one example of Treatyinfringement, says Councillor Jason Hunt. In 163 years,the Crown, built entire economies on North VancouverIsland without First Nations consent. They have exploitedour lands and waters, and marginalized our people.

The Kwakiutl believe that Crown governments and industrywill have to meaningfully engage on a deeper level withwhen proposing to make decisions or conduct business onFirst Nations territories.

3 For further information contact: www.algonquinnation.ca:Chief Harry St. Denis, Wolf Lake 819-627-3628; Chief TerenceMcBride, Timiskaming 819-629-7091 (English/Francais); ChiefMadeleine 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


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 Canadadecision in Tshilqotin is so important, it is helpful toknow what the Court actually decided.

There were three key issues or questions. First, what isthe test for aboriginal title? Put another way, where willyou find it? Second, what does it mean to have aboriginaltitle? Is it really ownership of land, or something quitedifferent, say, just a right to be consulted about its use?Third, what authority does the provincial government haveover aboriginal title lands? Are they like Indian reserves,where provincial land laws do not apply, or somethingdifferent?

On the first and third questions, in particular, there weresharply different views taken by the trial court and the BCCourt of Appeal. Those views were based on thosecourts interpretations of prior court decisions. TheSupreme Court has now resolved those differences. Theyve made clear what has been argued about for a longtime. And that clarity, in my view, will have a profoundimpact on the use and development of lands and resourcesin British Columbia.

Aboriginal title is the way our law gives effect to the factof prior aboriginal presence on the lands of what is nowCanada. Its not just the right to engage in culturallyimportant practices such as fishing, trapping, hunting andforage - those activities are recognized and protected asaboriginal rights. Aboriginal title is how the lawrecognizes the indigenous claim that this land has alwaysbeen ours.

But putting it that way does not necessarily answer thequestion: what land are you talking about? Is it the landthat has been most intensively and continuously occupied,say, villages and their immediate surroundings? Or is itlarger areas of land, the territories over which FirstNations have exercised dominion by using and regulatingaccess for resource use purposes, assigning rights ofownership, and excluding other First Nations?

In terms which do not do justice to the complexity of thequestion, but at least make the differences clear, it is

sometimes said that this is the debate between the postagestamp theory of aboriginal title, and themountaintop-to-mountaintop theory. If the latter, thenlarge parts of the province will be aboriginal title landsbecause most First Nations in BC exercised dominion overlarge territories, with clearly recognizable internal rights ofresource use and ownership, and histories of defendingtheir 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 theCourts statement of the requirements for the proof ofaboriginal title, but also because of the Courts actualdecision - reversing the Court of Appeal - that theTsilhqotin had established their claim for title over a largepart of their traditional territory. . . It is abundantly clearthat aboriginal title must exist over vast tracts of theprovince.

As the Court makes clear, aboriginal title means ownershiplargely as we would recognize it. It includes the right todecide how the land will be used, and to occupy, enjoy,possess, and manage it. Put plainly, its their land. Thereare limits, of course. Aboriginal title land cannot be usedin a way that would prevent future generations of the groupfrom using and enjoying it. It is held communally, notindividually. The court also made it clear that aboriginalowners are entitled to the economic benefits of their land,and they can use the land in modern ways, if that is theirchoice.

There is little that is new law in this, aspect of the courtsdecision, but it all means much more once it becomes clearthat aboriginal title exists in large parts of the province -and indeed, wherever in Canada aboriginal title has notdefinitively been surrendered to the Crown by treaty orotherwise.

The constitution assigns exclusive legislative authority overIndians and lands reserved to the Indians to the federalgovernment. For this reason, provincial land lawsgenerally do not apply on Indian reserves. What aboutaboriginal title lands? Some courts, including the trialjudge in this case, have held that aboriginal title lands arefederal enclaves, where provincial land laws cannot apply.

Its one thing of course to imagine the application of such aprinciple in a postage stamp aboriginal title context. But ifaboriginal title exists throughout the province, what wouldhappen to the authority over land and resource developmentthat the provincial government has exercised for over acentury, 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 Legge5

Grant & Munroe LLP/ He also is a board member at SteelheadLNG Corp. Mr. Plant blogs at http://theplantrant.blogspot.ca


clarifying that a controversial rule of constitutionalinterpretation known as the principle ofinterjurisdictional immunity does not apply to aboriginalrights and title.

Accordingly, the province still has the authority toregulate land and resource development on aboriginal titlelands. But that authority is severely restricted byrequirements that have been established by the courts asthey have interpreted the recognition and affirmation ofaboriginal rights and title established by section 35 of the1982 Constitution Act.

In short, government may infringe aboriginal title, but onlyif the infringement can be justified. Justification requiresconsultation with the aboriginal titleholder. It means thatthe infringement must be minimal, consistent withgovernments fiduciary responsibilities to aboriginalpeoples, and backed by a compelling and substantialobjective. And it may mean offering accommodations.

This language is familiar to those who know the SupremeCourt of Canadas decisions in cases such as Sparrow,Delgamuukw and Haida Nation. What the court hasconsistently been trying to do is to create a balance inwhich aboriginal rights are given strong recognition,without completely displacing governments ability togovern in the larger public interest. Whats important hereis that the stakes are higher, once you recognize that largeparts of British Columbia are not just territories claimedby aboriginal peoples but, most likely, owned by them.

The court repeatedly makes it clear that the preferredmethod of authorizing development on aboriginal titleland is to obtain aboriginal consent beforehand. In simpleterms, if you have aboriginal permission, then you dontneed to justify the infringement. You avoid theuncertainty that is created by the need to justify whereaboriginal title is asserted but not yet proven.

Absent consent, government will not know if it hasjustified an infringement unless and until it hassurvived a court challenge. This is inherently risky: asthe court says, if the Crown begins a project withoutconsent prior to Aboriginal title being established, itmay be required to cancel the project uponestablishment of the title if continuation of the projectwould be unjustifiably infringing. Rather thanproceed in the hope that the development can bejustified, the better course is to obtain consentbeforehand.

There are many circumstances in which a First Nation maybe willing to consent to an infringement of their asserted

or proven title. But almost certainly, if the infringement isin pursuit of an economic development objective - a forestlicence, a hydro-electric dam, or a pipeline project -consent will come with a price tag. Aboriginal people areunlikely to agree to the creation of economic value fromtheir land unless they have a share in that value.

The new law here is the courts decision that the provincestill has legislative authority over aboriginal title land. Butwhile the province still has the power to regulate, itsclearer than ever that it will only be able to exercise thatauthority if it is willing to share the benefits of economicactivity with the aboriginal owners of the land on which itis proposed to take place.

And of course, there is no requirement that First Nationsconsent to that activity. They may refuse, either becausethe price - the benefit - is not high enough, or because thecost - in environmental terms - is too high. In suchcircumstances, government may only proceed if it meetsthe high burden of the requirements of justification.

What does all this mean? I am in the camp of those who seethis decision as transformational both as a matter of legaldoctrine and, equally importantly, in its impact. It mattersthat the Supreme Court has, for the first time in its history,declared the existence of aboriginal title on specific landsoutside 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 thisjudgement for the rest of British Columbia.

While it is certainly true that the court has not drawnspecific boundaries of aboriginal title land anywhereoutside Tsilhqotin territory, it has nonetheless inescapablyredrawn British Columbia. It has raised the stakes foraboriginal participation in economic development andcomplicated provincial land and resource decision-makingin ways that may take years to sort out.

But to contend that all this is important is not to say that thesky just fell on British Columbia. There is nothing in thisdecision that need necessarily increase conflict or halt alldevelopment.

It will certainly cause many First Nations and projectproponents to take a second look at their plans andstrategies. But only, in my view, if government fails torecognize that this time out, the rules really have changed,and that now, more than ever, there is a need for realpolitical leadership, provincially and federally, on thisall-important file. Now is not the time for governments topause while they study their way into inaction. Now is thetime for something quite radically different.


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 [email protected], Vancouver Sun

Victoria, B.C., 27 June 2014 Three decades ago NisgaaChief James Gosnell declared in the midst of the nationalconstitutional debate that aboriginal people owned BritishColumbia lock, stock and barrel.

Back then he generated headlines and more than a littleoutrage and disbelief. Today, thanks to a judgment for theages from the highest court in the land, we should admitthat he was well on the way to being right.

For as Supreme Court of Canada Chief Justice BeverleyMcLachlin observed Thursday in recognizing title for theTsilhqotin 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 alltime.

This gives them the right to determine, subject to theinherent limits of group title held for futuregenerations, the uses to which the land is put and toenjoy its economic fruits, wrote McLachlin in adecision joined unanimously by seven other judges.

Hers was an up-to-the-moment version of title, not onethat would confine native people to the traditional uses offishing rocks and salt licks: Like other landowners,Aboriginal titleholders of modern times can use their landin modern ways, if that is their choice.

But even as she looked to the future, McLachlin rooted herdefinition of Aboriginal title in the oldest of legalauthorities, the English common law, and its equation ofownership with general occupancy of the land: A generaloccupant at common law is a person asserting possessionof land over which no one else has a present interest orwith respect to which title is uncertain.

The Europeans who settled this province neglected tosecure clear title from the owners who were already here.Ironically, they also imported the legal system thatallowed 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 anaward of timber cutting rights in 1983, meaning it overlapswith nine premiers and successive Social Credit, New

Democrat and B.C. Liberal administrations. B.C.governments of every political stripe have been in denialabout the meaning of aboriginal title for a long time.

While the specifics of the ruling only apply to the claimbrought by the Tsilhqotin, the high court provided a guidefor other First Nations seeking similar recognition overtheir traditional territories.

The onus is on them to demonstrate that they occupied theirtraditional territories in sufficient fashion, continuously andexclusively. The Tsilhqotin were able to do that in aremote valley with no overlapping claims from other FirstNations. Pointedly, they also excluded private propertyfrom their claim.

Not all of the provinces 200 recognized First Nations maybe able to meet the test in like fashion. But one can expectthat many will, with significant consequences for theprovince and its economy.

There was some concern that the high court might write theprovince out of the picture because land reserved for FirstNations is federal jurisdiction. But Chief Justice McLachlinpreserved the provincial jurisdiction over management ofresources, albeit in stunted fashion where it would run upagainst aboriginal title. Valid: Legislation aimed atmanaging the forests in a way that deals with pest invasionsor prevents forest fires. Not valid: The issuance of timberlicences on Aboriginal title land for a direct transfer ofAboriginal property rights to a third party.

The latter may have every forest company and otherholders of timber cutting rights wondering if theyll soonbe negotiating with a new landlord.

The judgment did indicate that the federal and provincialgovernments could encroach on aboriginal land for projectsin the broader public interest. Examples cited: The

Chief James Gosnel, Nisgaa Nation, 1982


development of agriculture, forestry, mining, andhydroelectric power, the general economic development ofthe interior of British Columbia, protection of theenvironment or endangered species, the building ofinfrastructure and the settlement of foreign (meaningnon-native) populations to support those aims.

Even then, governments would have to consultextensively, minimize infringement, compensateadequately, and be prepared to prove they have met thosestandards in court.

Thus the provincial authority over land and resourcesis substantially diminished and First Nations wouldappear to have secured a near veto over developmentwithin their traditional territories.

Welcome to the new B.C., where the rule of law nowincorporates a delicate balance between European andaboriginal concepts of rights and title. Still it isrecognizably 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 andhis Nisgaa people have since made a treaty. Before hedied in 1988, Chief Gosnell had this to say about themeaning of his words.

When I said we owned the place, lock, stock and barrel,nobody asked me, Jimmy, what do you mean by that? hetold journalist author Terry Glavin. Well its thebeginning point of negotiations. Thats what it is. We ownthe whole thing. You want my land? Lets negotiate.

Then it was an invitation, perhaps even a dare. In the newBritish Columbia defined by the Supreme Court ofCanada, theres no longer any choice. Lets get on with it.

EditorialA Supreme road map on rights, duty

A Supreme Court of Canada decision has better definedwhat is meant, and owed to First Nations by the term"aboriginal title" in this country. A long-sought victory fora collection of First Nations in central British Columbiahas obvious implications for development on Crown landin areas not covered by treaty, most obviously theNorthern Gateway pipeline.

The decision confirmed the Tsilhqot'in Nation's title to avast tract of land around Williams Lake. It is in line withprevious rulings on aboriginal rights, but it is the first timethe Supreme Court has granted aboriginal title to a First

Nation.

The court stressed the need for honest recognition by bothparties FirstNations andgovernments ofthe need torespect andaccommodate theinterests of eachwhendevelopmentimpinges upontraditionalaboriginalterritory and uses,such as huntingand fishing.

The B.C.government, orany provincedealing withdevelopment ofCrown lands claimed by bands without treaty, will have tomake vigorous effort to win the buy-in of First Nationsbefore proceeding with their plans.

That imposes on all governments a duty to consult andaccommodate those interests. Resolving conflictinginterests in the courts is a time-intensive and ultimatelyregrettable way of settling disputes. The court's sage adviceis particularly meaningful as Canada enters a new era ofpipeline development to move its vast supply of oil and gasto markets overseas.

The Tsilhqot'in decision serves notice those First Nations must come to the table and consider reasonable efforts tomeet their concerns. But it is the governments, federal andprovincial, that shoulder the duty to consult and to workwith the First Nations the responsibility cannot be handedoff to private corporations, consultants or agencies.

The Tsilhqot'in claim to the land took more than 30 years tobe recognized and now must be addressed for logging toproceed. The better way to protect the interests of all is tomove expeditiously to sign land-settlement agreements.

Any First Nation or government that would choose to holdhostage their mutual interests in protracted, expensivebattles will have to answer to the courts, which now haveanother guide from the Supreme Court to follow.


The claims are just. But the Supreme Courtruling means chaos

by Gordon Gibson 6 [email protected]

Imagine that you have been involved in a very long, veryimportant negotiation extending over years, a powerstruggle in a game with uncertain rules, with each sideholding its cards very close to the vest. Imagine someprogress is finally being made, and then into the roomwalks an outsider who hands one side four aces and ajoker. The situation is suddenly entirely new and no oneknows quite what to do. The wheels fall off for a long time this is what this decision will do to the B.C. treatynegotiation and reconciliation process.

Alarmist? No. Its exactly what happened in 1997, whenthe Delgamuukw decision on aboriginal title came down,an equally momentous event. The negotiators on all threesides (federal, provincial and aboriginal) took years toregroup, but progress was again being made until theTsilhqotin decision.

The Supreme Court has now defined aboriginal title in anexpansive way. Title confers the exclusive right to controlthat land in a much stronger manner than ordinaryCanadians with private property. Any activity on that landmust have consent from the relevant nation. (This awardof 1,700 square kilometres was to a small subgroup of theTsilhqotin Nation. There are about 200 Indian Act Bandsin British Columbia.)

The key word is consent. The old rule wasconsultation and accommodation if required.Lacking consent, governments still have a right toinfringe on title in certain circumstances but mustpass high hurdles of justification another recipe forlitigation.

This is a major shift in the balance of power and willrightly elevate aboriginal expectations. But the other sideis that deals will freeze until things are sorted out, which isbad for everyone. This first award of aboriginal title willsurely result in a mushrooming of claims throughout theprovince. The upshot will be that major resource projects, pipelines,mines and the like will face the kind of uncertainty thatinvestors hate. (The new certainty will be more litigation.)Many projects will simply be abandoned and newopportunities will be spurned. There are British

Columbians who will say, Hooray! These are the sortwho believe that money comes from banks and food comesfrom supermarkets and dont understand what pays forhealth care.

This commentary does not dispute the justice of FirstNations claims, nor give any credit to governmentalwisdom. The treatment of our First Nations has beenawful. For four years, I sat on the Gitxsan Nations sideof a treaty table and will say without hesitation thatgovernments were not bargaining in good faith. Ourproposals were imaginative and negotiable. Thegovernment representatives mandates are narrow andinflexible everyone agrees with that. The blame forthe current situation lies squarely in the fat laps ofgovernments.

So, we have a mess. B.C. Premier Christy Clark has anatural-gas pipe dream for provincial riches. Stand by foraboriginal title claims all along the proposed routes underthe new law, which will allow significant new attempts attoll-gating. This will either frighten off proponents or eatup the provinces hope of tax revenues. We have a narrowwindow on liquid natural gas, which may now close ascompetitors occupy the markets.

Mining was making a comeback in B.C. Then the giantNew Prosperity project was shot down, with aboriginalobjections a major factor. Look for more of this while thenew world of aboriginal title gets sorted out.The solution, if any, comes in two parts. The first is togenuinely treat First Nations claims with respect. Theprovincial government has made a lot of progress, butOttawa remains in the dark ages. It is going to cost a lot ofmoney many, many billions and take a lot of cabinettime, but so it should.

The second part is being honest with everyone. It is theduty of governments to facilitate the development of theeconomy, and they are going to have to firmly lay downrules that all parties will be able to rely upon. Governmentshave been politically frightened of aboriginal peoples sinceOka, but they still have a duty to the general public.There is an honourable way out, but, alas, it involves facingthe facts.

Gordon Gibson is a well-known B.C. columnist and the author6

of A New Look at Canadian Indian Policy: Respect theCollective Promote the Individual.


First Nations mistaken in their celebration of Supreme Court ruling

Ian Mulgrew, Vancouver Sun columnist

Welcome to Colonial Courtrooms, should have been thetitle of the Supreme Court of Canadas landmarkaboriginal rights judgment.

While B.C. natives were busy last week celebrating thecourts affirmation of their aboriginal title, they shouldhave paid closer attention to the fine print.

In spite of all the hand-wringing about threats to resourcedevelopment and the land mass of B.C., this is a bigvictory for governments.

In the unanimous 8-0 decision, which dismissed with narya nod the last half century of strident native assertions ofsovereignty, the high court said B.C. natives are not unlikeany other litigant squatter.

First they must establish they are the same people whohave been living on and using the land forever, and thentheir rights will be decided by governments through talksor, in the end, by its appointed judges.

No longer will rhetoric about government-to-governmentdiscussions have currency Chief Justice BeverleyMcLachlin decreed aboriginal title flows fromoccupation in the sense of regular use of land.

McLachlin skirts issues of governance and sovereigntyand notes only that aboriginal land rights survivedEuropean settlement and remain valid unlessextinguished by treaty or otherwise.

Although aboriginal peoples have some extra rightsconstitutionally, government can still expropriate or placeeasements on their land just as they can to anyone elsesin the name of the greater good.

Like the rest of us, the natives have the right to take theircase to court, said Justice McLachlin.

As long as the government negotiates in good faith and iswilling to cut a reasonable cheque, any mine, industrialdevelopment or pipeline can proceed.

How radical. There is no native veto.

Natives may be able to establish aboriginal title but oncethey do, they dont appear to be much better off thannon-native landowners in a fee-simple dispute withgovernment. 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 rightsand the need to look after the interest of future generations,which again presumably is subjected to judicial reviewgiven the fiduciary obligations involved.

Consider as well that if Tsilquotin is a benchmark, wecould hand the same deal to B.C.s roughly 200 other FirstNations and still have two-thirds of the province left.

What they won here was an area of some 1,700 squarekilometres less than the size of Metro Vancouver awilderness with about 200 residents, a handful whom arenon-aboriginal.

This 339-day trial was an embarrassment: Private lawyersgot rich and the costs were in excess of at least $40-million.

The dispute in its broadest sense involved at most a groupof six bands numbering 3,000 people and raw, isolated landthat isnt worth a fraction of the cost of the litigation.

The Supreme Court should have pointed that out, andcastigated both levels of government for ignoring their dutyand obligation to the Tsilquotin instead of dragging themthrough the courts.

There are fewer than one million First Nations peopleacross the country and this decision is irrelevant to most ofthem because they have treaties. Most of the countrysnon-status Indians are in this province and it is here that theSupreme Court decision has impact.

In B.C., the old colonial administration stopped signingtreaties, leaving most of the province uncovered, and nosuccessor 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 povertyand other disadvantages that are too numbing to recite.

This decision is a death knell for their dreams ofsovereignty and the opening bell for a new nativeland-and-resource exploitation rush.

With this judgment, the focus shifts from the recognition ofnative self-government and the devolution of powers toappropriate First Nations structures to divvying up the pie.We will see a burgeoning of the already crowded industryof land-claims lawyers, consultants and native ethno-cultural-historiographers and a blizzard of new litigation.

Think this marathon, decades-long court case is unique?Just wait.

This decision has brought clarity but its a clarity thatbrings consequences that I think many natives may notwelcome.

Chief Justice McLachlin calls it the new governing ethos


of reconciliation.

All I hear is a new phrase for assimilation, and all I see isa roadmap for non-aboriginal interests and governments toachieve their ends.

We can infringe on native title as long as we justify it as anecessary part of the reconciliation of Aboriginalsocieties with the broader political community of whichthey are part.

Resistance is futile, come on down aboriginal brothers andsisters and be part of European litigation culture.

Hmmm, heck of a victory.

Thats a game-changer all right, but maybe not in the waynatives think it is.

Lavish First Nations subsidies promote fanciful thinking

By Lorne Gunter ,QMI Agency

Heres a proposal for dealing with First Nationsobjections to resource development (and projects such aspipelines) on land they claim is theirs by tradition: Letshave the federal government cut off annual subsidies toreserve governments.

That way, First Nations would have to decide whether ornot to allow development based on the same criterion therest 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 onFirst Nations, chiefs and councillors would have to choosewith their heads rather than their sentimental hearts.

This is similar to my argument that Quebec should losemuch of its annual equalization subsidy. Quebec govern-ment makes foolish fiscal choices all the time because itcan. 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-priceuniversity and college tuition for in-province residents. Italso offers cheap, cheap daycare, while at the same timerunning up huge annual deficits.

The Quebec government has also refused to developresources such as shale gas and oil out of greenconcerns. If developed, shale alone could bring Quebecstreasury nearly $2-billion a year.

So the only reason Quebec can offer such rich benefits toits citizens is that the provincial government receives $8-to $10-billion in annual equalization payments.

But why should taxpayers in the rest of the countrysubsidize Quebecers social fantasies? That provinceshould have to maximize all its own-source revenuepotential before receiving a single dime from the rest ofCanada.

Indeed, this logic should apply to every province, just as itshould also apply to First Nations. After all, First Nationsare the most heavily subsidized of all Canadians.

The Supreme Court has ruled that First Nations can applyfor title to huge tracts of land way beyond the boundaries oftheir reserves. And if successful at winning title, they canhave an effective veto over most development on thesebroad, traditional hunting grounds.

The courts ruling was a little more nuanced than somereports would indicate, but not much more. Aboriginaltitle flows from occupation in the sense of regular andexclusive use of land, Chief Justice Beverley McLachlinwrote. This will not always be an easy standard to satisfy.

A present-day First Nation will have to show that itsancestors routinely hunted, fished or harvested over land itis claiming as its own. Moreover, it will have to show thatcompeting First Nations didnt also make regular use ofthe same tracts. But once such title is established (andduring the whole process to establish whether or not titleexists), the justices decided governments have an obligationto seek approval in advance from any First Nation making aclaim 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 radicalenvironmental groups backed by billionaire Americanlefties. If nothing else, Thursdays ruling gives theaboriginal-environmentalist alliance a powerful new club tohold up Canadas economic advancement for years.

However, the biggest reason First Nations feel comfortablestalling or even halting resource projects is the fact theycan survive on their current taxpayer subsidies of $17,000to $25,000 for every man, woman or child on reserves.

Such lavish subsidies permit First Nations to indulge infanciful thinking because they do not have to factor in thecost to themselves and their families of rejectingdevelopment.

So end the subsidies and encourage more rational land-claims negotiations.7

editorial comment: The Treaty negotiations were7

explicitly to prevent dependency. It is the failure of governmentsto keep the Treaty promises that has passed the bill to taxpayers.


Canadas First NationsThe atlas of King George: A 250-year-old promise to indigenous peoples still binds

The Economist

WHEN King George III proclaimed in 1763 that Canadasindigenous peoples had rights to their ancestral lands, itbought peace with the locals who outnumbered andsometimes outfought the British colonists. But as thebalance of inhabitants shifted indigenous people nowaccount for only 4.3% of the population governmentstook an increasingly narrow view of that promise. In somecases they ignored it completely.

On June 26th the Supreme Court of Canada provided asharp re

Documents

E-notes Tsilhqotin Decision Part I