A ruling in the Supreme Court of Canada has forever changed the ground rules in how Canada deals with First Nations, according to retired jurist Tapoo'scho'ahHugh Braker, Tseshaht chief councillor.
On June 26, the SCC granted a declaration of aboriginal title to 1,750 square kilometres of land in the traditional territory of Tsilhqot’in Nation. Chief Justice Beverley McLachlin wrote the unanimous decision.
“In this case, this decision is a strong one for aboriginal people because it is unanimous,” Braker said.
On Monday June 30, Braker hosted a conference in the Tseshaht Great Room to discuss what the decision means for Tseshaht members and BC First Nations in general.
Braker greeted the gathering on behalf of the Tseshaht people, the Ha’wiih and elected council, and thanked the Nuu-chah-nulth Tribal Council for co-hosting and for webcasting the conference via the Ha-Shilth-Sa Web site.
“Last and not least, I would like to thank the Tsilhqot’in people for their resilience, their resolve and their courage for bringing this case forward,” he said. “This case was by no means a sure victory from the beginning.”
Braker said he called the meeting after being contacted by a number of members, all asking, “What does this case mean for Tseshaht, and whether it applies to us and whether it is going to change things.”
Prior to Braker’s presentation, which took about an hour, NTC Vice-President Ken Watts also acknowledged the Tsilhqot’in people, with special mention of Chief Roger William and Tribal Chairman Chief Joe Alphonse, as well as the many elders, some no longer living, who added their strength to the fight.
Watts also noted the huge number of interveners in Tsilhqot’in Nation vs British Columbia, which included four provincial Attorneys-General, a host of B.C. First Nations and national aboriginal organizations, plus numerous industry associations, even Amnesty International and the Council of Canadians.
“They all felt this was very important,” he said, noting that the process has brought a range of disparate parties together. “There is a huge opportunity here.”
Braker gave a brief synopsis of the case, which began when six Interior First Nations opposed an incursion by a forest company into their traditional territory.
Tsilhqot’in Nation resolved to seek aboriginal title through the B.C. court system, which led to an initial victory, Braker explained.
“After five years and tens of millions of dollars, and 331 days of sitting, the trial judge ruled that the Tsilhqot’in were entitled to a declaration of aboriginal title,” Braker explained.
But the court did not go so far as to order the declaration itself. In the meantime, the province sent the case to the B.C. Court of Appeal.
In its statement of defense, B.C. had argued that Tsilhqot’in would only be entitled to aboriginal title on small, very specific parcels of land within their traditional territory, such as villages or (maybe) traditional fishing sites. But no general title.
“The effect was, you would have these little postage stamps of land all over the place where you would have aboriginal title, and in the rest, you had aboriginal rights, without title.”
The B.C. Court of Appeal rejected the declaration of general aboriginal title in favour of the postage-stamp approach, and Tsilhqot’in took the ultimate step of taking the case to SCC.
In a historic decision, the high court overturned the B.C. Court of Appeal ruling and ordered a declaration of general title.
“I believe this is the first time in Canada that the SCC, or any superior court, has ordered a declaration of aboriginal title,” Braker said. “Even in Delgamuukw, the SCC told the two parties to go back and re-try the case.”
The decisions in Guerin, Calder and Sparrow also fell short of a declaration of general title, he added.
Under Delgamuukw, the SCC spelled out the requirements for aboriginal title for non-treaty nations:
1. Proof of occupation prior to contact
2. Continuity of present and pre-contact occupation
3. Exclusive occupation
“In her decision, McLachlin ruled that these terms are ‘tools,’ and not ends in themselves,” Braker explained. McLachlin took into account “laws, practices, customs and traditions of the group.”
For example, Braker said, under the postage-stamp concept, a First Nation would be hard-pressed to prove continuous occupation of rarely visited sacred sites. In her decision, he explained, the Chief Justice used the aboriginal perspective to define “occupation.”
Likewise, the concept of exclusivity, which turns on having “the intention and capacity to control the land,” also looks different viewed through an aboriginal lens.
Using Nuu-chah-nulth nations as an example, Braker pointed out that one nation with mutually-accepted ownership of a specific resource or harvesting site may grant permission to another nation to use it.
“When one nation grants use to another nation, that does not rule out exclusivity.” It actually confers title to the nation by the consent it’s given to other nations to harvest resources.
According to Nuu-chah-nulth tradition and practice, then, “ownership” does pass the test of “intention and capacity to control the land.” The ability to grant permission only strengthens the case for title.
On the other hand, Braker noted, the Tsilhqot’in decision does not deal with overlap issues between nations.
“The chiefs in B.C. met a month ago to discuss issues of overlap,” he said. Top of mind was the need for a strategy to deal with that nagging issue of “exclusivity” in any future claims for aboriginal title.
“So what does aboriginal title mean?” Braker said. “McLachlin refers to title as ‘an independent legal interest,’ which creates a fiduciary duty on the part of the Crown… The holders have the rights associated to the benefits of the land associated with it.”
Use it. Enjoy it. Profit from its economic development.
Any incursion by government or industry would be subject to compensation under the rule of law.
The implications are enormous, especially in the area of major resource developments such as Northern Gateway or the proposed liquefied natural gas program.
Braker concluded that the decision means Canada can no longer treat First Nations’ interests lightly.
“The duty to consult and accommodate is even stronger. Tseshaht’s hand is now strengthened, especially in forestry,” Braker said.
Gone are the days when government comes to the negotiation table with “pre-determined outcomes.”
“I believe the government will now be anxious to consult with First Nations, in part, because their recent record has not been good.”
In the short run, Braker said, Tseshaht is currently looking at its Forest Revenue Sharing Agreement with the province. While they provide First Nations with much-needed revenue, as part of the agreement, each nation is required to relinquish a certain level of administrative authority over its territory.
“Our agreement expired in May, and we have not yet re-signed it. Why? Because there are several issues we have to think about.”
Braker said other First Nations are undoubtedly now taking a step back to re-examine agreements currently under negotiation, in light of Tsilhqot’in.
