Tuesday, September 16, 2014
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Supreme Court’s land-rights ruling could imperil Northern Gateway pipeline

SEAN FINE

JUSTICE WRITER — The Globe and Mail

The right of aboriginal groups to control vast swaths of land, and gain new leverage over lucrative development projects, will be at stake when the Supreme Court of Canada rules Thursday in a case pitting the small Tsilhqot’in Nation, a group of 3,000 people, against the government of British Columbia.

The case could be important for the proposed Northern Gateway pipeline, which would carry bitumen oil from Alberta to Kitimat, B.C., and for other development projects wherever aboriginals have not signed away their rights to assert their claims to the land.

At issue is the concept of aboriginal title to land. In 1997, the Supreme Court said in a case known as Delgamuukw v. British Columbia that there is such a thing as aboriginal title – the right to possession of ancestral lands. It goes beyond the right to hunt and fish, and includes the right to benefit economically from the trees, minerals and oil and gas on, or under, the land. But its actual existence on a particular piece of land has never been recognized anywhere in Canada outside of reserves, and the rights it gives the aboriginals who hold it have never been spelled out.

“This case has the potential to make us look at our national anthem in a new way,” David Rosenberg, lead lawyer for the Tsilhqot’in, said in an interview.

“When we say, ‘O Canada, our home and native land’ – on lands not subject to treaty and where the title still exists for the First Nations, they may have the right to decide what happens on that land.”

The implications are huge. “I’m certain Northern Gateway is crossing land that is not subject to treaty and could be subject to aboriginal title,” Mr. Rosenberg said. Although Northern Gateway is not directly at issue in the case, the court’s decision could change the rules of the game for the pipeline. Current law requires that aboriginal groups along its route be consulted and accommodated, but groups that can assert that they have title might have the power to stop the pipeline from going ahead, Mr. Rosenberg said.

The case began more than 20 years ago as the Tsilhqot’in fought to keep a logging company out, after the company’s plans were approved by the B.C. government. The Tsilhqot’in defeated that company in court, over the potential effects on their hunting, fishing and trapping rights. But the aboriginal group appealed a ruling of the B.C. Court of Appeal denying their claim to title more than 4,000 square kilometres of land west of Williams Lake.

The appeal court said title refers to “intensive presence at a particular site,” such as salt licks and rocks used for fishing. “There is a need to search out a practical compromise that can protect aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well being of all Canadians,” it said.

The B.C. government and the federal government agree that title refers to specific sites – a view the Tsilhqot’in say makes a mockery of aboriginal title.

“This is a blueprint for conflict and discord, not reconciliation,” the aboriginal group said in a document filed with the Supreme Court.

Business groups say the Tsilhqot’in’s approach to title threatens the economy. “A territorial approach undermines the ability of corporations, and indeed First Nations, to ensure the global competitiveness that is required to attract capital … within natural resource sectors dependent on the land base,” a coalition of B.C. business groups, intervening in the case, told the Supreme Court in its written argument.

Several provinces, aboriginal groups and Amnesty International also intervened.

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