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- Created: Thursday, 10 October 2013 03:47
- Published: Thursday, 10 October 2013 03:47
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By PETER O'NEIL, Vancouver Sun
OTTAWA — The Supreme Court of Canada agreed Thursday to hear a key case that's at the centre the decades-long legal fight over aboriginal claims to vast parts of British Columbia.
The case involves the claim by the Tsilhqot'in First Nation to 4,380 square kilometres of territory west of Williams Lake.
The case is considered by legal experts to be the most important aboriginal land case put to Canada's highest court since the 1997 Delgamuukw decision.
That decision, involving the Gitxsan and Wet'suwet'en first nations in B.C., resulted in the court recognizing that aboriginal "title" to land exists. The judges then set out how governments must consult, perhaps compensate, and even get consent to "infringe" on that title through projects such mines, tree harvesting, and road construction. But the court stopped short in 1997 of declaring whether the Gitxsan and Wet'suwet'en had title to the lands being claimed, saying that a new trial would be needed to make that determination.
So far, that new trial has never taken place. Many B.C. first nations have tried to resolve their claims through negotiations, with limited success.
Legal experts say the Supreme Court will likely use the latest case to set out how aboriginal land title can be established.
"It's a huge case. It's Delgamuukw No. 2, in a sense," said University of B.C. law professor Gordon Christie, a specialist in aboriginal law.
Both the B.C. Supreme Court, in 2007, and the B.C. Court of Appeal, in 2012, accepted the Tsilhqot'in claim that they have certain traditional rights to the land. However, both courts differed significantly on how far those rights extend.
B.C. Supreme Court Justice David Vickers delivered a broad interpretation in his 2007 ruling, saying that a nomadic people who used a large area of land periodically over many years had a right to claim title to that land.
That is the basis of First Nations' claims that blanket the entire land mass of the province.
But Vickers, citing a technicality, didn't issue an order granting title.
B.C.'s appeal court rejected the thrust of Vickers' ruling, saying that a title claim must be based on a specific occupancy and intensive and exclusive use of a site.
The law does not "support the idea that title can be proven based on a limited presence in a broad territory," Justice Harvey Groberman wrote for the appeal court.
"I see broad territorial claims to title as antithetical to the goal of reconciliation, which demands that, so far as possible, the traditional rights of first nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians."
The Tsilhqot'in, in announcing plans to appeal last year, said the decision was "regressive" and would generate uncertainty for all Canadians.
"For us, the Court of Appeal denied the legitimacy of our laws, our ways of life, who we are as Tsilhqot'in people," said Chief Joe Alphonse in a statement Thursday.
"We're grateful to have the opportunity to present to the Supreme Court of Canada a different path to reconciliation," said Alphonse, tribal chairman and chief of Tl'etinqox-t'in community, one of the six nations that make up the Tsilhqot'in First Nation.
Roger William, the plaintiff in the case and a councillor with the Xeni Gwet'in First Nation, said in the joint statement that elders who testified in the original trial and who have since died would be "honoured" by the court's decision Thursday.
UBC's Christie said the Supreme Court of Canada could finally spell out in detail its view of aboriginal title claims.
"The Supreme Court is going to have a chance to actually sit down and say, 'this is what we meant in previous cases, this is how it plays out here.' A lot of questions will be answered."
He said the court has in the past indicated a need to meld common law with aboriginal traditions. If the top court wants to follow through on that commitment, he said, it needs to recognize more clearly that aboriginal rights include ownership of at least some land.
"There are pretty good arguments that aboriginal title has to have some territorial component to it," he said. "If they don't take territory into account they've pretty much ignored the aboriginal perspective."
He said the current court has given indications it is "fairly conservative," suggesting a relatively narrow interpretation.
University of Victoria law professor Chris Tollefson said the initial 2007 William decision was the first time a trial judge has, after weighing evidence, concluded that a first nation has a legitimate claim title to a substantial tract of land. But the appeal court took, in the eyes of first nations, a big step backwards.
"There is a huge difference between the vision of the trial judge and the Court of Appeal, so will the Supreme Court of Canada choose one or the other or will it come down with a decision that takes a third approach?"
Regardless of which route the court takes, both the 2007 and 2012 decisions recognized aboriginal rights that must be considered before development takes place.
That will create new uncertainty for projects like Taseko Mines Ltd's proposed gold-copper project near Williams Lake that is opposed by the Tsilhqot'in, he said.
But Taseko spokesman said in an email Thursday that neither the 2007 nor the 2012 rulings suggested there was aboriginal title in the mine property.
"There will be limited impact on the New Prosperity project," he said.
Alphonse disagreed, saying in a statement that both decisions did recognize aboriginal rights in the area of the mine. He said the federal government acknowledged those rights when it turned down Taseko's original proposal in 2010.
"Taseko Mines has a lot to be worried about. This case is about all our ownership of the land, including the area that would be mined," he said.