Canada’s high court sides with First Nations in land rights case

June 26, 2014 12:30PM ET
by Benjamin Shingler @benshingler

Canada’s top court has sided with a British Columbia indigenous tribe in a case that could have wide-reaching implications for land disputes over traditional aboriginal territories.

The Supreme Court of Canada ruled Thursday in favor of the Tsilhqot’in Nation, a tribe of 3,000 in the remote interior of the Canadian province, in a battle over a swath of land long sought for commercial logging.

The court decision hinged on the meaning of the legal term “aboriginal title,” which refers to the land rights held by aboriginal peoples as a result of long-standing use and occupancy.

Until now, the top court hadn’t made it clear how those rights could be measured.

“It’s a very historic judgment in being the first court decision to make a declaration on aboriginal title,” said Dwight Newman, a professor at the University of Saskatchewan and Canada Research Chair in Indigenous Rights.

“This decision means that we have a court ruling where it was possible to prove, and the test is not as demanding as some had thought.”

Government, industry and aboriginal groups had been anxiously awaiting the ruling, which could ultimately have an effect on whether development projects can go forward in areas where aboriginals have not signed away land rights.

These could include the Northern Gateway pipeline, a planned project that would ship oil from the Alberta tar sands across British Columbia to the Pacific Coast.

It could also shape the outcome of a fight over shale gas extraction on traditional Mi’kmaq territories near the Elsipogtog First Nation in the province of New Brunswick, said Gordon Christie, director of the University of B.C.’s indigenous legal studies program.

A long, hard road

First Nations across Canada, many of which are still seeking modern, comprehensive land claim agreements with the government, were seeking a ruling that would provide some clarity, Christie said.

“Given all the resource development projects in the works, this has the potential to have quite an impact on all of that,” he said.

The Tsilhqot’in said in a statement earlier this week that the “true recognition” of aboriginal land rights was long overdue.

“It has been a long, hard road to get to this point,” said Chief Joe Alphonse.

“Many of us have worked towards this our entire lives in leadership.”

The Supreme Court case stems from a conflict that began in 1983, when the Tsilhqot’in fought to keep a logging company off the traditional territory of one of its tribal bands, known as Xeni Gwet’in.

In 2007, British Columbia Supreme Court Justice David Vickers ruled that the Tsilhqot’in did indeed have claim to a territory they had used for centuries. Vickers said the Tsilhqot’in people still had the right today to use the area to hunt, trap and harvest — and earn a moderate living off the land.

He also ruled they had aboriginal title to 40 percent of an area totaling 1,700 square miles, but stopped short of declaring the title into law on a legal technicality.

In 2012, the British Columbia’s Court of Appeal overruled that decision, finding that the notion of aboriginal title applied only in areas where the Tsilhqot’in historically had an “intensive presence,” such as a preferred spot for fishing or hunting.

Thursday’s Supreme Court decision agreed with Justice Vickers’ earlier interpretation, ruling that “the trial judge identified the correct legal test and applied it appropriately to the evidence.”

“While the population was small, he found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation,” the ruling said.

Industry representatives had warned that siding with the Tsilhqot’in would create “an investment chill” around future development projects.

“If provincial law does not apply to any lands found by a court to be subject to aboriginal title, there will be a legislative vacuum that will hamper investment and the creation of jobs and will endanger the viability of existing operations and jobs in British Columbia,” the Business Council of British Columbia argued in court documents.

But Christie said the ruling likely wouldn’t cause the upheaval some industry groups had warned about, contending that some of it had amounted to “fearmongering.”

Instead, Christie said it could mean negotiations around modern treaties “would get much more serious,” something First Nations groups have wanted for years.