Supreme Court had 'no other choice' in landmark ruling: lawyer

The Tsilhqotin Nation case is a landmark decision because it is the first time in history that the Supreme Court ever issued a declaration of Aboriginal title essentially a declaration that the Tsilhqotin owned the land.

But reading the case, it is clear the Court had no other legitimate choice.

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The BC government did not properly consult and accommodate the Tsilhqotin people with regard to forestry operations within their lands. The BC Supreme Court issued a non-binding ruling wherein Justice Vickers said that the Tsilhqotin probably had Aboriginal title and that the Crown ought to negotiate a fair and honourable settlement.

What did the federal and BC governments do?Ignoring previous directions from the Supreme Court to seek reconciliation,they decided to appeal the ruling to the BC Court of Appeal and the Supreme Court of Canada.

The Crowns lost; common sense, the rule of law and constitutionalism prevailed.

Tsilhqotin case proves Aboriginal title

The Crown governments argued that Aboriginal claimants had to establish intensive physical use of specific tracts of land to prove Aboriginal title what has come to be known as the postage stamp theory of Aboriginal title. As the ethno-centric argument goes, the Tsilhqotin and Aboriginal peoples generally were nomadic or semi-nomadic and unlike sedentary agriculturalpeople, could never establish Aboriginal title to their traditional territories.

The IBA argued that Aboriginal claimants can also lead evidence of legal occupancy, i.e., Indigenous laws such as laws on tenure and trespass, to establish proof of Aboriginal title. There was ample evidence produced at trial to show that Tsilhqotin people had such laws. The Supreme Court held that the Aboriginal perspective, including Tsilhqotin laws are to be given equal weight in determining Aboriginal claims. This applies equally to treaty claims.

Tsilhqot'inproven to be owners of land

Further, one of the most interesting things about the Tsilhqotin case is with regard to the doctrine of terra nullius, a Latin term which means empty land. That theory espouses that Indigenous peoples were so uncivilized that they could not be seen in law to be true legal occupants and owners of their lands.

It was the legal basis upon which Indigenous peoples were dispossessed of their lands throughout the colonial period in many parts of the world. The Crown postage stamp theory of Aboriginal title is reminiscent of the doctrine of terra nullius. The Supreme Court has now stated unequivocally in the Tsilhqotin case that the doctrine of terra nullius is not part of the law in Canada.

It is quite likely that federal and provincial governments will again ignore the advice of the Court on reconciliation. This will mean more conflict in the future.- David C. Nahwegahbow, lawyer

There is another important point in the case and that is the issue of consent.

The Supreme Court wrote that whether before or after a declaration of Aboriginal title, governments and individuals can avoid an infringement of the duty to consult by obtaining the consent of the Aboriginal group affected.

This effectively raises the significance of the First Nation communities in decision-making processes regarding resource management decisions affecting their land and rights. This lends credence to the United Nations Declaration on the Rights of Indigenous Peoples, which calls for the free prior and informed consent before development on Indigenous lands.

More conflict in future likely

What are the implications of the Tsilhqotin Nation case for Canada? Will Crown conduct change? It is hard to say. Unfortunately, judging from their past conduct, it is quite likely that federal and provincial governments will again ignore the advice of the Court on reconciliation. This will mean more conflict in the future.

However, I am hopeful that the Crown will learn from this case: that they will sit down with Indigenous peoples, modify federal and provincial laws and policies to positively embrace what section 35 of the Constitution Act, 1982 provides, and what the Supreme Court has been saying all along -- Aboriginal and treaty rights are hereby recognized and affirmed, and not denied, infringed and extinguished.

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