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Supreme Court of Canada ruling will be 'milestone' in aboriginal rights jurisprudence

By Peter O'Neil, Vancouver Sun

OTTAWA — Canada’s highest court will announce its ruling Thursday on what is expected to be a landmark aboriginal rights case with implications for projects like Enbridge’s $7.9-billion Northern Gateway oilsands pipeline.

The case, like most if not all of the most important legal battles over aboriginal title claims, involves a B.C. First Nation — in this case the Tsilhqot’in (formerly Chilcotin) First Nation in the central Interior.

It is expected to be the first time the Supreme Court of Canada has ruled on a specific claim to title, or land property rights, and experts say it could be the most important case in the history of aboriginal rights development in Canada.

“It’s destined to be a milestone in Supreme Court of Canada aboriginal rights jurisprudence,” said University of Victoria law professor Chris Tollefson.

A decision going against the federal and B.C. governments, who oppose the Tsilhqot’in claim, “would throw province of B.C. into a crisis management situation,” said Gordon Christie, director of the University of B.C.’s indigenous legal studies program.

Both academics said the decision, if it favours the Tsilhqot’in perspective, could spell trouble for major industrial projects and especially controversial oilsands pipelines like Northern Gateway that are to go through traditional aboriginal territory.

But Thomas Isaac, a lawyer specializing in aboriginal rights and a former B.C. government chief land claims negotiator, said he expects a narrow interpretation of title that won’t meet the Tsilhqot’in expectations.

“I don’t necessarily think this is going to be a game-changer.”

Facing the eight judges is a 2007 ruling from B.C. Supreme Court Judge David Vickers, now deceased, declaring that the Tsilhquot’in have title to roughly 40 per cent of the 4,380 square kilometres of what they formally claimed as the traditional territory of the six bands that make up the First Nation.

But that ruling was overturned by the 2012 B.C. Court of Appeal decision, which recognized the aboriginal right to hunt, trap and harvest in the claimed area, but said no proof of title existed.

The three appellate judges added that the First Nation could make claim to small pockets of land within their traditional territory if they could prove these areas were used intensively before British assertion of sovereignty in 1846.

The two decisions represent stark choices for the eight judges — and for Canada’s future.

The B.C. business community has repeatedly warned that an endorsement of Vickers’ expansive 2007 decision would wreak “havoc” on the provincial economy, because a transfer of title to a First Nation means the land would then be effectively under federal control.

That in turn would undermine the province’s ability to issue permits to do everything from construct roads and bridges to building mines and harvest lumber.

“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,” the B.C. Business Council warned in a court submission.

“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.”

But attempts over several decades to reconcile Canadian society with aboriginal peoples also hang in the balance, according to some First Nations leaders.

A news release issued this week by the Tsilhqot’in National Government said the 2012 ruling “makes a mockery” of aboriginal title and is “based on a stereotypical and discriminatory views of indigenous peoples.”

Both B.C. law professors said the Supreme Court could find a way to avoid an either/or decision, perhaps by redefining how aboriginal title can be determined when it involves a semi-nomadic people like the Tsilhqot’in.

It could then send the case back to the B.C. Supreme Court for re-trial, though that decision would challenge the patience of the plaintiffs who endured a 339-day trial that lasted over five years, and included Vickers’ visit to the territory in question, according to Tollefson.

“That would be disappointing” if the court found a way to avoid finally making a determination on title, he said.

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