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REPORTING · 6th July 2014
Walter McFarlane
The Supreme Court of Canada issued an unanimous ruling on a case of Aboriginal Rights and Title which gives British Columbia First Nations clear rights over much of their traditional territory, as long as there is an established history of use of the land for hunting, fishing, harvesting and not just what some of the case arguments called "postage stamp reserves." The decision which strengthens aboriginal rights to the land will have implications across Canada, even where there are established treaties.

The case issued, on the morning of Thursday, June 26th goes back to 1983.

According to the court documents, found by clicking here, the BC Government issued a logging permit on Tsilhqot’in traditional territory which the First Nations objected to.

“The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Prior to establishment of title, 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,” reads the ruling.

It further goes on to say that where it is established, the Crown must comply with the procedural duties but must justify incursions on to title lands. The government’s activities must be necessary, they can do nothing more than necessary to achieve their goal, and the benefits must not be outweighed by adverse effects on Aboriginal interests.

“The alleged breach in this case arises from the issuance by the Province of licences affecting the land in 1983 and onwards, before title was declared. The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests. The Province did neither and therefore breached its duty owed to the Tsilhqot’in,” read the document.

In Kitimat members of the Haisla First Nations and supporters gathered at the former Hospital site to celebrate the court victory of the Tsilhqot'in First Nations. Several Haisla Elders took centre stage. Gerald Amos did most of the speaking.

“The ruling confirmed aboriginal rights and title in regards to the Tsilhqot'in and their territory but it has implications for all of us who are gathered here. We wanted the primary purpose to gather in celebration of the ruling,” said Amos.

He said it was a symbolic effort to thank the Tsilhqot'in for their 25 year effort. They are standing on the backs of the people who have fought this battle for half a century. He is also calling on the non-aboriginal friends of the First Nations to hold the government’s feet to the fire.

“In the past, whenever there has been a victory in the courts, in this country of ours, by enlarge, the response by both governments and industry has been to downplay, minimize, marginalize, do whatever they can to keep these rulings from benefiting the people who they apply to,” said Amos.

He expressed one part of the ruling says a previously permitted project can be called into question in regards to lack of consultation and accommodation and could have to start over. He expressed Enbridge was one concern, but while many of the LNG’s have had consultation, not all of them have acted the same way.

Although the Harper government has been putting the onus on companies like Enbridge to consult with First Nations, Amos pointed out that the right of consultation falls on the government as well as the companies and that the Supreme Court ruling has made it an obligation for government, who can no longer leave it up to companies who wish to operate in traditional territory.

He expressed it would set precedence on many fronts. He said it was now it was time to put pressure on government and industry to make sure the rulings do not fade away.

Amos explained the Coastal First Nations were trying to convince the government to abandon the Enbridge Northern Gateway project. Amos also added that this could open the door to true reconciliation.

Murray Minchin of Douglas Channel Watch stated their main focus is on Enbridge. “This changes everything on how corporations and provincial and federal governments will deal with First Nations,” said Minchin.

He was worried that Prime Minister Harper could envoke a rarely used override clause in the constitution where he could bypass the Supreme Court and order a resource project started and completed. However, each First Nation who has not given up their sovereignty over the land have the right to hold their stewardship laws in a court of law.

Member of Legislative Assembly Robin Austin stated the ruling was very powerful, voted 8-0 by the Supreme Court of Canada. He added it also follows suit with other cases of Aboriginal Rights and Title which have come out of BC.

“It’s going to have a huge impact, I think, on moving forward with treaty negotiations and also, it’s going to have a huge impact in terms of large industrial companies coming here with big projects in terms of what their responsibilities are now, to actually sit down with First Nations and get Social License and acceptance of what the First Nations want to have happen in their traditional territories,” said Austin.

He expressed that companies like Enbridge might be looking at this and trembling.