A Supreme Court decision in June has better defined what is meant, and owed to First Nations bands, by the term “aboriginal title” in this country. A long-sought victory for a collection of bands in central British Columbia has obvious implications for development on Crown land in areas not covered by treaty, most obviously the Northern Gateway pipeline.
The decision confirmed the Tsilhqot’in Nation‘s title to a vast tract of land around Williams Lake. It is in line with previous rulings on aboriginal rights, but it is the first time the Supreme Court has granted aboriginal title to a band.
The court stressed the need for honest recognition by both parties — bands and governments — of the need to respect and accommodate the interests of each when development impinges upon traditional aboriginal territory and uses, such as hunting and fishing.
The Tsilhqot’in, as with most B.C. bands, did not sign a treaty with the Crown at the time of European settlement. Some have signed settlement agreements — modern treaties. Others have had to take their claim to court.
In 1983, the B.C. government began issuing logging rights to private firms, refusing to recognize the Tsilhqot’in claim over the remote central valley. A lower court granted the bands title, based on their historical use (rather than strictly settlement) of the land, but that was overturned on appeal. Last Thursday, the Tsilhqot’in title over some 1,750 square kilometres was confirmed by the Supreme Court.
The B.C. government, or any province dealing with development of Crown lands claimed by bands without treaty, will have to make vigorous effort to win the buy-in of First Nations before proceeding with their plans.
Much of Canada, and almost all of Manitoba, is covered by treaties that ceded aboriginal title to the Crown, but native bands have claim to traditional use and interest in territory they used at time of contact. That imposes on all governments a duty to consult and accommodate those interests. Manitoba Hydro, for example, is careful to sign agreements that share the economic benefits of new generating stations with First Nations.
The Supreme Court’s ruling on the Tsilhqot’in case makes clear, however, that aboriginal title does not give a band a veto on development. The court, led by Chief Justice Beverley McLachlin, unanimously signalled that Canada is best served when provincial and federal governments and First Nations recognize each has a responsibility to accommodate the other’s interests.
Governments must notify and consult bands whose rights may be infringed upon, and try to meaningfully accommodate the concerns. The bands must negotiate to reasonably resolve their concerns.
Resolving conflicting interests in the courts is a time-intensive and ultimately regrettable way of settling disputes. The court’s sage advice is particularly meaningful as Canada enters a new era of pipeline development to move its vast supply of oil and gas to markets overseas.
The Northern Gateway project has received conditional approval to construct a line across northern Alberta and B.C. to the port at Kitimat. Numerous First Nations strenuously oppose the plans, with no intent to permit the pipeline regardless of environmental protection or mitigation efforts.
The Tsilhqot’in decision serves notice those bands must come to the table and consider reasonable efforts to meet their concerns.
But it is the governments, federal and provincial, that shoulder the duty to consult and to work with the bands — the responsibility cannot be handed off to private corporations, consultants or agencies.
The Tsilhqot’in claim to the land took more than 30 years to be recognized and now must be addressed for logging to proceed. The better way to protect the interests of all is to move expeditiously to sign land-settlement agreements with bands still without treaty.
Any band or government that would choose to hold hostage their mutual interests in protracted, expensive battles will have to answer to the courts, which now have another guide from the Supreme Court to follow.
(Source: This editorial ran in the Winnipeg Free Press)