Sunday, September 21, 2014
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Landmark Supreme Court ruling grants land title to B.C. First Nation

By Peter O'Neil, Vancouver Sun

OTTAWA — The Supreme Court of Canada, in the most important aboriginal rights case in the nation’s history, ruled that the Tsilhqot’in First Nation has title – or owns – 1,750 square kilometres of land in south central B.C.

The landmark ruling will provide a clear and less onerous roadmap for all unresolved land claims in B.C. and throughout Canada involving First Nations seeking to negotiate modern treaties – or to fight for their land rights in court.

“Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it,” Justice Beverley McLachlin ruled in the 8-0 decision.

The ruling largely accepted the broad interpretation of what title means, as laid out by the late Justice David Vickers in a 2007 B.C. Supreme Court decision, and rejected the far more narrow view delivered by the B.C. Court of Appeal in 2012.

Business groups have warned of “havoc” if the 2007 ruling prevailed, while First Nations said endorsement of the 2012 view would have made a mockery of the notion of Aboriginal title.

To be known for generations to come as the William case, after plaintiff Roger William, the decision confirmed for the first time any where in Canada a title claim.

But it also declared that provincial governments – and not Ottawa, as some business groups had feared - will retain regulatory authority over land obtained aboriginal people through court cases or land claim negotiations.

In B.C.’s case, due to a technicality, the provincial forests act will have to be amended in order to maintain that authority.

Future economic activity on title lands, involving anything from mines and logging to pipelines and hydroelectric projects, will require the “consent” of title-holding First Nations.

But the court also said the Crown can justify “infringement” of that title, when consent is absent, under specific circumstances.

“Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group,” the chief justice stated in her ruling.

The wording is crucial to the future of projects like Enbridge’s proposed Northern Gateway oilsands pipeline, which runs through claimed – though not established as being title lands in court or through negotiations - traditional territory of numerous First Nations.

Legal analysts have said a ruling such as Thursday’s would significantly strengthen the hand of First Nations in B.C. or Alberta who want to file a land claim on territory along the Gateway route, and hope to obtain an injunction preventing construction while that claim is heard.

The judgment, because it was dealing with a semi-nomadic people who only seasonally occupied many parts of the claimed territory, established a less onerous test to establish title.

The 2012 ruling declared that title required proof of intensive, site-specific use that was sufficient, exclusive and had some semblance of continuity from the time British sovereignty was established – in B.C. it was 1846 - to the present day.

But Thursday’s ruling recognized a more flexible test than that spelled out by the three B.C. appellate judges. It also explained in greater detain than in past cases how judges and negotiators should in the future marry the differing perspectives of Aboriginal and common laws.

“Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.”

The Tsilhqot’in First Nation is made up of six Indian Act bands. The trial, which began in 2002, lasted 339 days and included a visit by Judge Vickers to the claimed territory.

The case involved provincial forestry licenses that were granted in the claimed territory.

Justice McLachlin found that the province – which argued that the licenses should be granted due to economic need as well as because of the requirement to attack the Mountain Pine Beetle infestation - hadn’t met the “compelling and substantial” test.

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