Thursday, September 18, 2014
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The Way I See It: First Nations and municipality need to communicate to negotiate treaty

Nick Davies / Whistler Question

Commenters such as Sheldon Tetreault want us to believe that the Tsilqhot’in decision gives local First Nations the power to lay the cleaver to Whistler’s economy.

Nothing could be further from the truth.

The Tsilqhot’in decision does not represent an advance in the law of aboriginal title, nor does it give First Nations an unexpectedly large bundle of rights. The decision simply confirms the law relating to the nature of aboriginal title, confirms that the province can continue to take and regulate Crown land even where aboriginal title is proven, confirms what First Nations must prove in order to prove aboriginal title and confirms the extent to which First Nations must be consulted before they have proven aboriginal title.

The Tsilqhot’in decision increases certainty and will enhance the investment climate in British Columbia.

The Tsilqhot’in decision settles that First Nations have the right to assert aboriginal rights over a territory, not simply their living sites. In most cases, and certainly in the Whistler area, First Nations will only establish aboriginal title over a very small part of the area they call their traditional territory. In the Tsilqhot’in decision itself the Tsilqhot’in Nation only managed to establish aboriginal title to about two per cent of their traditional territory.

Mr. Tetreault says in his letter to the editor on July 17 that First Nations have seen little benefit from the massive urban development of the resort. Recognizing that the Whistler economy is a significant part of the provincial economy, Mr. Tetreualt’s complaint is utterly without merit. The Delgamuukw decision confirmed that the question of aboriginal title to land that is not covered by a treaty is a legitimate issue, and that oral evidence was admissible to the trial of that issue. As Chief Justice McEachern said in the initial Delgamuukw decision “ … it would not be accurate to assume that pre-contact existence in the territory was in the least bit idyllic … ancestors had no written language, no horses or wheeled vehicles, slavery and starvation was not uncommon, wars with neighbouring peoples were common, and there is no doubt … that aboriginal life in the territory was, at best, “nasty, brutish and short.” Based on my discussions with First Nations elders and the evidence in the Squamish Lil’wat Cultural Centre, life in the Whistler area may have been even worse. Arguably, the life enjoyed by both sides today is infinitely superior to the life either side suffered 300 years ago.

Mr. Tetreault points to problems that are of First Nations’ own making. The taxpayers of Whistler funded the construction of the Squamish Lil’wat Cultural Centre by several hundred thousand dollars and continue to fund the operation by granting tax breaks. It is not Whistler’s fault if the cultural centre is not living up to expectations. When the Callaghan lands were negotiated First Nations hoped to use the lands for a campground, hotel, golf course and casino. Whistler’s municipal council supported that aspect of the deal because it was good for First Nations even though it clearly was not in Whistler’s best interests. Projects of that scale take time. The fact that First Nations have been unable to fulfill those dreams a scant four short years later is hardly surprising.

That local First Nations have outstanding title issues has not changed with the Tsilqhot’in decision. But Mr. Tetreault is simply playing the guilt card — an emotional argument not based on law or fact which is played whenever there is a chance to extract an advantage, depends on the sympathy of the province when played, and will never result in a permanent solution.

The question now is whether local First Nations are prepared to negotiate a treaty. Both sides need to communicate in a way that will engender respect. That happened in the negotiations leading up to the 2010 Winter Games. It can happen again.

It is time to get rid of the guilt card and get down to business.

Whatever Trevor

Dis is Trevor.

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