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Vaughn Palmer: Top court’s First Nations land title decision, scheduled for Thursday, looms large

Supreme Court of Canada ruling could re-shape landscape in B.C.

By Vaughn Palmer, Vancouver Sun columnist

VICTORIA — Twenty-five years ago this summer, native people in a remote valley of the central Interior set in motion the most important court case to date involving First Nations ownership of land in B.C.

The William case, after Chief Roger William of the Xeni Gwet’in First Nation, dates from the Aboriginal Wilderness Preserve Declaration of Aug. 23, 1989. It banned road construction and commercial logging in the Nemiah Valley northwest of Williams Lake.

The declaration led to a lengthy, expensive and partly inconclusive aboriginal land case in B.C. Supreme Court.

Some 339 days of hearings and tens of millions of dollars in legal bills for taxpayers (who covered costs for both sides) culminated in an almost 500-page judgment in 2007 that acknowledged Xeni title over about 2,000 square kilometres of the valley, only to stop just short of full recognition on a technicality.

Five years later, the B.C. Court of Appeal scaled back the broad recognition of title contained in the lower court decision, which led to the inevitable trip to the highest court in the land.

Later this week — 6:45 a.m., Thursday B.C. time, to be precise — the Supreme Court of Canada is scheduled to hand down its ruling in the case. Whatever it says will have huge ramifications in a province where most land and resources are potentially subject to aboriginal title.

The high court is being asked to choose between the broad definition of title, as established by B.C. Supreme Court Justice David Vickers (now deceased) and a narrower version articulated by a three-judge panel on the Court of Appeal in a judgment written by Justice Harvey Groberman.

Essentially, the Vickers doctrine would make it easier for a given First Nation to establish title over the broad territory where it exercised traditional rights of hunting, trapping, fishing and other activities.

In contrast, the Court of Appeal said bands would need to demonstrate physical occupancy of a given site before title is proven. The latter would be a harder test for peoples who were traditionally nomadic.

The rival approaches — site-specific versus broadly territorial — would have significant implications for treaty talks in B.C.

Commonly, the provincial and federal governments try to settle land claims for about five per cent of a given band’s traditional territory. Vickers would have awarded the Xeni about half of the territory over which they asserted title.

A related issue before the Supreme Court could reduce provincial government jurisdiction over Crown land and resources — which is to say most of B.C.

Vickers held wherever aboriginal title is established, then provincial legislation like the Forest Act would no longer apply because under the constitution, aboriginal matters are mainly federal jurisdiction.

That the stakes could not be higher is readily evident from the multiple interventions in the case from a broad range of governments, First Nations and other interest groups.

Here’s the B.C. Business Council on the economic implications if the court makes it easier to prove aboriginal ownership of land and resources in a province with 200 recognized First Nations, many asserting overlapping claims.

“Business and industry in B.C. requires certainty and predictability in order to invest, plan, operate and provide employment and prosper,” wrote the council in arguing that the entire provincial economy could be held hostage by title cases.

“There must be certainty concerning the application of provincial law, particularly in respect of resource tenures granted by the Crown,” it continued.

“If provincial law does not apply to any lands found by a court to be subject to aboriginal title, there will be a legislative vacuum that will hamper investment and the creation of jobs and will endanger the viability of existing operations and jobs in B.C.”

Moving into that vacuum, potentially, would be the federal government, given constitutional jurisdiction over matters aboriginal. Not likely would British Columbians welcome increased control over provincial land and resources by distant and sometimes unrepresentative federal administrations.

Already, there’s been loose talk that if the final decision in the William case weakens provincial jurisdiction, B.C. should seek support of other provinces for a constitutional amendment to rectify the situation.

Nor would the economic uncertainties identified by the council be without consequences for the public at large, given the central importance of resource development to the province’s ability to raise revenues and fund services.

“The resulting investment chill will have serious and perhaps irrevocable consequences for the province’s reputation and will erode provincial revenues derived from the land base. Any such erosion of provincial revenues and private sector investment has a direct impact on government’s ability to fund services, including health care, education and social programs.”

While all eyes in the business, investment and political communities will be on Ottawa Thursday when the high court releases its judgment, First Nations say the stakes are even higher for them. Depending on how the court rules, the survival of their way of life is at stake.

But that is a topic for another day.

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