British Columbia Assembly of First Nations Regional Chief Jody Wilson-Raybould calls it a game-changer.
She is absolutely right. The Supreme Court of Canada, in a unanimous decision yesterday, granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation.
The decision overturns a 2012 Court of Appeal decision that gave the Tsilqot’in the right to hunt, trap, and fish in the area but fell short of declaring title on specific areas the bands could establish specific locations where their ancestors lived.
That flew in the face of the fact that the Tsilhqot’in were a semi-nomadic people, roaming over the territory on the western reaches of the Chilcotin Plateau down to Chilko Lake and the Nemiah Valley.
Yesterday’s ruling by the Supreme Court acknowledges that the Tsilhqot’in could claim title if they met three tests – if they could prove they occupied the land, had a continuity of habitation on the land, and exclusivity in the area.
The ruling says the bands in the area have the right to enjoy the land, use it, and profit from it. Hence the game-changer aspect.
The Supreme Court, however, have a qualifier in that it ruled outside economic development can occur on the land if one of two conditions is met:
• Economic development on land where title is established has the consent of the First Nation.
• Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.
In other words, First Nations approval and/or involvement in resource developments has to be substantive and meaningful.
It’s a game-changer for developments such as the Northern Gateway pipeline, which is facing stiff opposition from First Nations groups along its proposed pipeline route. The pipeline debate, with its approval from the federal government, will likely now head into the courts as several First Nations groups have vowed to litigate. Those First Nations groups, when they head to court, will now be armed with what will likely be dubbed the William decision, after Xeni Gwet’in Chief Roger William who has been fighting this case for close to 20 years.
As for William, a soft-spoken quiet leader, he was magnanimous in commenting on the ruling.
“We take this time to join hands and celebrate a new relationship with Canada,” he said.