Common Sense Canadian
 

Rafe: Time Canadians get used to Tsilhqot’in case, Aboriginal title

Posted June 30, 2014 by Rafe Mair in First Nations
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Rafe Mair-Tsilhqot'in decision shows Aboriginal title is real

Chief Roger Williams (left) at the the Supreme Court of Canada (Photo: Pei-Ju Wang)

The Tsilhqot’in First Nation’s Roger Williams case victory settles the question once and for all: there is aboriginal title, it is effective, and it can be enforced by aboriginal peoples.

This is a long way from where the law was 25 years ago and for many people that will take some getting used to. No doubt there will be gnashing of teeth and suggestions that perhaps Parliament should change this. Forget it – get used to it – Parliament has no such power as this was a Supreme Court of Canada interpretation of Canada’s Constitution. The only way it can be changed is by a constitutional change and that simply is not going to happen.

There are unanswered questions, of course. What about other aboriginal claims than the ones ruled upon here?

Canadians are going to have to adjust their attitudes. This is now the law, not some speculative, temporary rule.

Decision makes it easier to assert aboriginal title

Each of those of course stands on its own merits. What this case does, however, is make it much easier for aboriginal communities to prove that they are entitled to the land. No longer must they show continuous habitation from ancient times – the fact that they can show a usage going back a reasonable period of time is enough. There will be arguments, of course, but I think one can understand, finally, that the Supreme Court of Canada is going to tend its judgments towards First Nations.

The question, of course, is what will this mean to development in British Columbia. Does this mean that hereafter we become a barren land where no development takes place?

The answer is, of course, no. Aboriginal peoples are going to favour development in certain areas, consistent with their laws and customs. There will continue to be logging, mining, etc., but it will be on entirely new terms. It also will be far more environmentally sensitive.

Enbridge, Kinder Morgan face uphill battle

What this is going to mean, of course, Is the laws of the province and federal government will change, as will be the procedures of business. It is no longer a question of consultation which implies that once that takes place, one can go ahead with what one planned. Now the operative word is “consent” – a very different thing indeed.

There will be something of immediate consequence, of course. In my opinion the Northern Gateway project is as dead as a door nail. There are numerous unceded First Nations territories in question and especially to be noted are those on the coast near Kitimat. Without any doubt, some of these nations will nix the project.

It would be merciful to all concerned if both the Northern Gateway and the Kinder Morgan projects were terminated now.

First Nations could block LNG

There are other projects which are in jeopardy. Much of the proposed infrastructure for liquefied natural gas (LNG) would fall on First Nations territories and will be subject to their veto. It seems to me that the BC government would be very wise to canvas this situation now, rather than wait and have them done individually as they come up. While some nations have embraced LNG, others are already voicing serious concerns.

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This could be a very substantial blow to Premier Clark’s plans to make us all rich by LNG. No doubt some of them will be approved, but not all. How wise it would be to sort this out now rather than wait, pretending everything will be OK?

Fear of aboriginal title unfounded

Many of the fears of those who worry about these things are unjustified. From the outset, First Nations have excepted private property from their claims. They have generally made no claim that cities and other settlements within their boundaries should all of a sudden belong to them. The city of Vancouver, for example, covered with aboriginal claims can rest easy at night in the knowledge that their homes and buildings are not going to be torn down and taken away.

In fact, when one looks back at this whole process of some 20 or 30 years, the reasonableness of First Nations in this regard stands out. One is so used to confrontations where everything in the world is demanded in hopes that there be some settlement at the halfway point that the fact that the First Nations have respected the private property of other British Colombians is to be noted.

What does Williams case mean for future?

I arrive back to conclusions about the Williams case.

British Columbians specifically and Canadians in general are going to have to adjust their attitudes. This is now the law, not some speculative, temporary rule. There will be no going back. In fact, there is a great deal of work yet to be done and some of this will be uncomfortable.

There is a power in the Crown, if a project is compelling and substantive, to interfere if to do so is consistent with its fiduciary obligation to aboriginal peoples. I take this to be almost meaningless. It is not a duty to consult, etc., but a power to completely change a decision by a First Nation.

I cannot see any government using this clause – if only for political reasons. It is there as a safeguard but in my view is all but unenforceable. Its only use I can see is as a threat in extraordinary circumstances.

For First Nations, this has been a long struggle, going back perhaps 200 years or more. The issue was not settled by conquest, if only because no conquest existed. Even then, lands conquered are not ordained by God to stay that way. Obviously, there were no treaties involved. The Europeans simply came in and took the land.

It’s under those circumstances congratulations are due First Nations and the rest of the community must simply resolve to make the best of the situation.

In my view, life will go on.

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About the Author

Rafe Mair

Rafe Mair, LL.B, LL.D (Hon) a B.C. MLA 1975 to 1981, was Minister of Environment from late 1978 through 1979. In 1981 he left politics for Talk Radio becoming recognized as one of B.C.'s pre-eminent journalists. An avid fly fisherman, he took a special interest in Atlantic salmon farms and private power projects as environmental calamities and became a powerful voice in opposition to them. Rafe is the co-founder of The Common Sense Canadian and writes a regular blog at rafeonline.com.

12 Comments


  1.  

    I agree with Mr. Mair. But the SCC, as in all legal decisions, has given itself wiggle room. There are circumstances where I can see the SCC permitting Northern gateway to proceed. If you read the decision, what is says is:

    “The Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

    “The Crown must … also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982 . This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group. This s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.

    Note the tests required to be satisfied by the SCC: rational connection, minimal impairment and proportionality of impact. The onus is on the party infringing the rights. These give the court great discretion when considering future cases where development impacts Fist Nations. The decision does not say “a compelling and substantial public purpose” overrides First Nation rights. I can see situations where “a compelling national interest” does not satisfy the above tests and that interest can be declared by the SCC to infringe section 35 of the Constitution Act, 1982.

    Of great interest to me is the failure of the evil, evangelical Harper to have Parliament declare Northern Gateway “to be for the general advantage of Canada or for the advantage of two of more provinces” under the Constitution Act, 1867, paragraph 82(10)(c). Perhaps Harper is getting bad legal advice? Perhaps he is saving such a move for later in the game?
    Such a declaration would offend the augmentation of rights under the Tsilhqot’in Nation decision and result in more litigation. The case would obviously end up in the SCC where the SCC would have to decide if Northern Gateway satisfies the three tests noted above.

    Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs has stated since June 26 that consent will never be given. The tests of rational connection, minimal impairment and proportionality of impact leave a window open that might be used by the SCC to allow Northern Gateway. When in law practice, I always told clients who wanted so sue to spend $99 on a ticket to Las Vegas for a three day stay. It was cheaper than paying lawyers and their chances of winning were better in Vegas than in court.

    There is no guarantee the SCC will order the construction of Northern Gateway an impairment of the constitutional rights of First Nations as declared in Tsilhqot’in Nation decision. I am biased. I would like to read the above words as an assurance that BCFN opposition will stop Northern Gateway. But nothing is guaranteed in litigation.

    What we can be sure of is that Alberta and Enbridge will not stop in trying to get Northern gateway built. And that the whole mess will eventually end up before the SCC to decide what is done. This fight will go on for many years.

    And perhaps the SCC might declare under section 7 of the Constitution Act, 1982 that the tar sands infringe our right to life, liberty and security of the person? But a case asking the court to do so has not yet been argued before it.




  2.  
    Bays Blackhall

    Rafe; Your column and its content actually made me proud of my First Nations blood as I think it is really time everyone was treated fairly.
    We are lucky I think to be able to share this land so respecting the rights of First Nations seems very important.
    Thanks for your well written and interesting contribution.
    Bays




  3.  
    Patrick Proudlock

    I am a lifelong resident of British Columbia and I grew up in a small rural community in the southwestern part of the province. 94% of British Columbia is so-called Crown Land, effectively providing for equal right of travel upon and enjoyment of almost all of the province.

    Surely there is a need for a recognition everyone who lives in this province — aboriginal and non-aboriginal alike — has a stake in the territory. No-one need be alienated, whatever his or her ancestral origin may be.

    Who will lead a unified vision of British Columbia and its land?




  4.  

    Instead of reacting to the interpretation of the native legal industry, read and comprehend the “fine print” of this decision. In order to claim title, they must now hire more lawyers in order to PROVE occupation and continual use. The decision does NOT prevent government from taking land away, the same as from anyone else.
    This decision will simply propagate further legal questions, thereby emplying even more lawyers.




  5.  
    ron wilton

    Hopefully this Supreme Court recognition will put an end to heavily armed legions of RCMP and other forces bullying us and First Nation’s people at legal and important protests.

    I can’t see lower court judges rubber stamping any more ‘injunctions’ that have the police serve and protect the will of corporations over the will of the people.




  6.  
    scotty on denman

    The first reactions of all governments that I’ve seen, and a few of their trolls, has been that governments have the power to abrogate the decision for the greater social good. But they don’t and the decision, which is clearly written, emphasizes this point: the onus of justifiable infringement of First Nation rights has been intensified for the government by the addition of this new type of title—they can’t just make it up and they can’t move unilaterally. Such action (which Harper has implied he will pursue) would automatically spark court action and, as this decision is meant to impress, the courts are finished with abrogating Constitutional FN rights and prepared to pursue treaties instead.





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