Common Sense Canadian

First Nation wins landmark legal victory

PostedJune 27, 2014 by in Canada
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Tsilhqot’in First Nation Chief Roger William at a Vancouver rally in 2011

Read this June 26 story from on the landmark victory by the Tsilhqot’in First Nation over land rights at the Supreme Court of Canada.

It’s being hailed as a significant victory for First Nations, and aboriginal people across the country are celebrating today’s Supreme Court of Canada decision granting title to more than 1,700 square kilometres of land in B.C. to the Tsilhqot’in First Nation.

“This decision is such a huge, most important decision that I’ve been a part of.” said Tsilhqot’in First Nation Chief Roger William.

William and other B.C. leaders were together in a boardroom in Vancouver when they heard the news.

“I was completely surprised. I can tell you this whole room erupted in cheers and tears after this long hard struggle.” said Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs.

The unanimous ruling grants the Tsilhqot’in Nation title to a large area outside its reserve. It covers 1,700 square kilometres of land the group has traditionally used.

The Tsilhqot’n First Nation has been fighting the case for more than two decades.

As soon as the decision was announced, speculation began about how it would affect other First Nations across the country.

“This decision building on previous Supreme Court of Canada decisions will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country where there is un-extinguished aboriginal title.” said Assembly of First Nations (AFN) Regional Chief Jody Wilson-Raybould.

“Just because the Supreme Court of Canada has issued this claim doesn’t mean that the government is going to start giving all the land back to the aboriginal people.” said Métis lawyer Garth Walbridge.

“But it could have a serious economic impact. The size of the boulder that Enbridge is rolling up the hill to get their pipeline built just got much bigger today, because the First Nations in that part of the country now have much much bigger say in whether or not Enbridge can go ahead.”



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Common Sense Canadian



    In a time of sound bites and shallow impressions, the First Nations come across as a noble stewards of nature. Certainly a welcome alternative to the rapacious corporatist capitalist white men and their political cronies.

    Hopefully they will not be as corrupted by the smell of money as our alleged representatives. Hopefully.


    This decision in no way reduces the risk of irresponsible development within BC.
    Be careful of what you ask for!

      scotty on denman

      I suppose you’re right about irresponsible development: maybe the decision will enable BC First Nations to be as irresponsible as non-aboriginal development. But we have to recognize that even this is a point-of-view matter: for some, the greatest irresponsibility of Northern Gateway, say, was the proposal to push it through un-ceded traditional FN territory, before or without treaties or proper, “meaningful consultation”; the same people might reverse their assessment if FNs along the route were participants on their own terms as owners of the land over which the pipeline passed. There’s no reason not to take FNs at their word that they oppose such developments on environmental grounds, in part, at the very least. But nobody gets to disallow them from using their newfound clout to negotiate a pipeline deal more to their liking, even if that includes development that some more ardent environmentalists might call “irresponsible”.

      BC FNs share the victimization of 150 years of official racist policy so harsh it’s been characterized as genocide by many. However, the notion that they’re a homogeneous unit is a misconception symptomatic of race prejudice. Outside of their victimization they are distinct nations, each with its own culture and outlook. Given that it will take, at the current rate, some 10,000 years to settle all BC FN land claims, it seems unlikely in the extreme that all of the FNs over whose territory the pipeline (for example) might cross would all be on the same page. The fear that working toward settlements will initiate an avalanche of development —by FNs instead of friends of the Big Dollar hegemon— is likewise a result of that same misconception of FN megalithicity born of race prejudice.

      It might have been more of a concern if the “title” the SCoC awarded the Tsilhqot’in was the same fee simple title the way English Common Law has hitherto defined it, but it isn’t: this type of title must inhere to future generations, a kind of “group title” that exists for now and future generations, which is the stated motivation of most FNs and, indeed, the only kind of title the Constitution would allow. The decision didn’t create it, it’s an interpretation of what already exists.

      I got used to FNs taking control of resources in BC over the years. Up in Bear Lake I heard the anger from white loggers when that FN had blocked a logging road, for about six months by the time we were contracted. At issue were dense stands of spruce infested with spruce bark beetle, which, unlike the infamous pine bark beetle, attack only the most vulnerable, usually oldest, trees. The pulp company wanted to clearcut thousands of hectares to “sanitize” the area; the FN argued that harvesting only patches of infested trees, combined with intensive pheromone-trapping around these openings, would preserve most of these stands which, as is usual in most of BC, were subject to land claims, in this case by the Bear Lake Band. The solution wasn’t a treaty or a court case but, rather, a deal that saw the FN getting a share of timber harvested from smaller, beetle-targeted areas. The attitude of some whites was that Indians were interfering with and “stealing”—it was actually said— timber from its rightful “owner” and taking jobs from “real loggers”. I was honoured to be there when the barricades came down and skidders under the direction of the FN moved into the targeted areas. I noticed most of the operators were non-native—so much for the racist stolen jobs theory. Naysayers persisted in characterizing the more modest harvest as timber “lost” to the provincial economy, which was total nonsense: all of those logs went to the big company pulp mill. Personally (and speaking from an professional POV), I found the FN’s management plan, their road block and their logging to be much more responsible than what the big license-holder proposed.

    scotty on denman

    The decision has been described in monumental terms, even so far as to call it the most significant in Canadian history. “This changes everything,” observed Xeni Gwet’in Chief Roger William, who’s shepherded the case through twenty years of proceedings. He knows well, and acknowledges as much, that the decision is not, for all its monumentality, a singular one: it is built upon precedences, on the shoulders, as ‘t were, of serial decisions that also ‘changed everything’, their now-familiar names, Calder, Sparrow, Delgammuukw each monuments in their own right. In this sense, the decision is rather more of a stepping stone at the end of a long trail, to which new steps will inevitably be added. Chief Justice MacLachlin, who wrote the decision on behalf of her unanimous colleagues, sums up these precedences and reasonings with such beautifully succinct language it seems there could have been no other conclusion.

    If indigestion is any indicator, the Tsilhqot’in decision is definitely very big: a whole day after it was brought down has provoked little more than governments’ self-proclaimed authority to infringe upon First Nation title lands in the name of the greater social good; yet government lawyers know there are substantial conditions to this allowance, and that the legal tests for allowable infringement are made in a courtroom, not in cabinet. Maybe contrary interpretations are intended to calm the nerves of those who make them—pipeline proponents, it would appear (even though the proposed Northern Gateway route does not traverse Tsilhqot’in territory).

    First Nation leaders expressed surprise at the decision’s unanimity; otherwise, a favourable decision was probably expected. Certainly bookies would have made good odds for a Tsilhqot’in win, based on the nation’s record of achievements, which include defence of its territory ( in fact this case was precipitated by the BC government’s breach of its fiduciary duty to First Nations by issuing logging permits on traditional territory without going through the mandatory consultative process ), its people living their culture with regard to language, food and occupation, communitarian move off-grid (solar, wind, etc.) when the nation disallowed BC Hydro construction on its territory, successful application for an ecological preserve when the nation fought to have horses officially defined as ‘wild’ and, of course, Tsilhqot’in tenacity in holding on to its own centre of the universe. This nation has been at the forefront for a long time.

    Chief William was careful to keep his statement to the press calm and rational, thanking various non-Tsilhqot’in groups, including non-aboriginals, for their help in pursuing this long, drawn-out case. He was also careful in avoiding entanglement in specific projects affected by this decision but outside of Tsilhqot’in territory. He was modest in his acknowledgement of the decision’s importance and likely impact, not only on resource extraction, but on the lives of FN people right across the country. His outlook is positive, not only for his own nation, but for all of Canada. Of all BC FNs, the Tsilhqot’in have the greatest right to bear a grudge against the BC government (the Chilcotin War was the only armed conflict between whites and FNs; its FN leaders were duped into surrendering themselves in order—they thought– to treat with their counter-combatants—and were summarily hanged) and the white society which it favoured so unfairly at such devastating expense to FNs. And yet, after every treachery perpetrated by the government, this Tsilhqot’in Chief’s first remarks upon hearing the favourable SCoC decision, were of good will to the rest of Canada—there was no trace of I-love-the-smell-of-napalm-in-the-morning vindictiveness, no gloating, no threatening—and Canada has become overnight more civilized as a result.

    The only thing I can say is: Thank you, Chief William, best wishes and good luck.

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