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Monday, June 30, 2014

Landmark Supreme Court ruling grants land title to B.C. First Nation By Dene Moore


VANCOUVER - It has been 150 years since the Tsilhqot'in people of British Columbia declared war on the Crown and the descendants of descendants of warriors long dead declared victory Thursday, following a landmark ruling from the Supreme Court of Canada.

The high court ruling recognized, for the first time in Canada, aboriginal title to a specific tract of land. The unanimous decision ended a 25-year legal odyssey and set a historic precedent affecting resource rights.

At an emotional news conference, Percy Guichon, chief of the Tsi Del Del - one of the six nations within the Tsilhqot'in - spoke of their leaders lured to peace talks and then hanged for the Chilcotin War of 1864.

"I'm so thankful and grateful to say that 150 years later we see the Supreme Court of Canada's decision today as the final justice for six chiefs who died for their land, way of life and the future of the Tsilhqot'in people," he said.

The high court overturned a B.C. Appeal Court ruling, essentially making it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities prior to contact with Europeans.

Unlike other provinces, the Crown did not sign treaties with most B.C. First Nations and the landmark ruling - the court's first on aboriginal title -will weigh heavily in unresolved land claims.

"British Columbia is comprised of unceded, unextinguished aboriginal-title territory from one end to the other," said Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs.

Phillip admitted he was not expecting the decision but he called it a win for all Canadians.

"Now we have the opportunity, we have the platform to build a genuine dialogue of reconciliation that has eluded us for so long," he said.

"I truly believe that a rising tide carries all boats and in that regard, we have an opportunity to participate in the economic future of this province as equal partners."

The Tsilhqot'in nation is located west of Williams Lake, in the B.C. Interior, with a population of about 3,000.

The legal case dates back decades, to a dispute over logging rights granted where Tsilhqot'in maintained traplines. Millions of dollars later, the high court has recognized aboriginal title over 1,750 square kilometres of territory.

Jack Woodward, the lawyer for Chief Roger Williams of the Xeni Gwet'in, who launched the case on behalf of the Tsilhqot'in, said it was a long 25 years.

"People said don't do these court cases. Go to the treaty table. Talk with the government," he said. "It was a lonely struggle to go forward and be in the courts and say, no, we're not going to settle for the few crumbs the government's willing to offer."

David Rosenberg, who was part of the Tsilhqot'in legal team, said the court found aboriginal title does not just apply to specific sites where First Nations lived or used intensively.

"It's territorial. It goes from mountaintop to mountaintop in some places; it covers valleys and vast tracts of land," he said.

The decision places a greater burden on governments to justify economic development on aboriginal land. Title, however, is not absolute. Economic development can still go ahead on titled land without consent in cases where development is pressing, substantial and meets the Crown's fiduciary duty, the high court ruled.

Federal Aboriginal Affairs Minister Bernard Valcourt said government is reviewing the decision.

He and Natural Resources Minister Greg Rickford both cited four treaties concluded since the Conservatives took office in 2006 as examples of their commitment to treaty negotiations.

"I can say that we ultimately believe the best way to resolve outstanding aboriginal rights and title claims is through negotiated treaty settlements," Rickford said in Calgary.

The Assembly of First Nations regional chief suggested that has not been the case previously, and called the court ruling a "game-changer."

"This has to be the wake-up call for governments - both the provincial and federal governments," Jody Wilson-Raybould said.

B.C. Attorney General Suzanne Anton said the decision provides "additional clarity" but she urged all parties to continue with treaty negotiations.

"We all know the success that comes when we choose to negotiate rather than litigate," Anton said.

The B.C. business community for decades has navigated the daunting landscape of the province's few treaties, many land claims and hundreds of one-off provincial benefits agreements.

Greg D'Avignon, president of the Business Council of B.C., said the ruling provides greater certainty about the land base but it immediately spurred comment about projects like the Northern Gateway and Trans Mountain pipelines.

"The Supreme Court of Canada has made it clear that aboriginal title is very much like private property rights - at its core it is the right to decide what use is made of our land and waters," said acting Chief Clarence Innis of the Gitxaala, a nation that has launched legal action against the Enbridge pipeline.

Ontario Regional Chief Stan Beardy said the decision will have ramifications for major projects in his province, including the Ring of Fire and Energy East pipeline.

Chief Joe Alphonse, tribal chairman of Tsilhqot'in National Government, saw in the ruling the possibility of ending the crushing poverty of his people.

"Today, we can barely afford to have houses for our people," he said.

"We can barely afford to give our elders enough fuel money to go to Williams Lake to go see a doctor. A former tribal chief used to call our reserve a glorified concentration camp. I sure as hell hope we broke down some of those barriers today."

- With files from Steve Rennie in Ottawa

Follow (at)ByDeneMoore on Twitter -CP-

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