Win for 'Rightful Stewards of the Land': Canadian Court Sides With First Nations
Ruling marks first time Canadian Supreme Court grants aboriginal land title
In a landmark ruling on Thursday with potential implications for the planned Northern Gateway pipeline, Canada's Supreme Court unanimously granted an aboriginal land title to the Tsilhqot'in First Nation, giving them claim to more than 1,700 square kilometers in British Columbia.
"British Columbia breached its duty to consult owed to the Tsilhqot'in through its land use planning and forestry authorizations," the 81-page decision (pdf) states.
"I didn't think it would be so definitive," said Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs. "I was actually prepared for something much less."
The decision rejected the narrow view of what qualified for protection under aboriginal rights from a 2012 ruling by the B.C. Court of Appeal. While the lower court had said aboriginal groups must be able to prove intensive historical use of a specific site, Thursday's decision accepts a broader set of criteria particularly important for the Tsilhqot'in, a historically "semi-nomadic" people. Indigenous groups must now prove a looser definition of occupation, continuity of habitation on the land, and exclusivity in an area in order to be granted a title.
"It only took 150 years, but we look forward to a much brighter future," said Chief Phillip. "This without question will establish a solid platform for genuine reconciliation to take place in British Columbia."
The ruling will potentially apply to any lands in the country that were never ceded to the crown, including lands which the Northern Gateway pipeline is slated to run through, and many others that have been the sites of development and resource extraction.
“They are the rightful stewards of their lands, and should be the ones to decide if and how they are developed,” said Maude Barlow, National Chairperson of the Council of Canadians, which intervened in the case in support of the Tsilhqot'in, in a statement released by the group. She stated her optimism that the decision is a sign "that there is no blank cheque for the Northern Gateway project.”
While the Tsilhqot'in are overjoyed with the ruling, there may be some unforeseen negative aspects to it that will still allow for corporate exploitation of aboriginal lands. As the Toronto Star reports:
... [T]he ruling will also be welcomed by industry and governments because the high court says provincial and federal governments may regulate economic activity like forestry on title lands. Lawmakers can do so either by consulting and getting consent of the aboriginal group, or by establishing a pressing and substantial public purpose and ensuring the regulated activity fulfils the Crown’s “fiduciary” duty to act in good faith for the benefit of aboriginal peoples.