Essay: A brief look at the Tsilhqot’in Nation Aboriginal title case

This article is part of the Herald’s 2015 Forestry Supplement, put out each year to coincide with National Forest Week.

ESSAY WINNER OF THE 2015 MIKE MORRISON MEMORIAL SCHOLARSHIP

By Jennifer Dustin

“It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.” 

– Grand Chief Stuart Phillip (as quoted by CBC, 2014)

On June 26th, 2014, for the first time in Canadian history, the Supreme Court of Canada declared Aboriginal title to a Canadian First Nation. The Tsilhqot’in Nation Aboriginal Title Case Decision (also referred to as the William Case Decision) resulted in Aboriginal title to nearly 1,900 square kilometers in south central British Columbia. Aboriginal title designates primary control of land — including the right to enjoy and profit from the land. Stemming from a series of cumulative legal proceedings spanning over two decades, the Williams Case Decision resulted in a landmark decision that is sure to change the future of land claims and economic development for Canadian First Nations.

Motivated to protect traditional territory from over-logging and what the Tsilhqot’in believed was improper use of the land by provincial and federal governments, the Tsilhqot’in Nation began a formal legal battle with the British Columbia and Canadian governments to assert indigenous rights over an area roughly 4,300 square kilometers near the city of Williams Lake.

In November 2007, Judge David Vicker of the British Columbia Supreme Court ruled that the Tsilhqot’in had demonstrated Aboriginal title over a portion of the land in dispute, but stopped short of making a formal judgment of title: “While the BC Supreme Court decision did not find Aboriginal title because of an issue related to the pleadings of the case, it did express its opinion that the Tsilhqot’in Nation could prove Aboriginal title to parts of its claimed traditional territory.”

Based on this decision, the Tsilhqot’in Nation filed an appeal, ultimately resulting in the Canada’s first legal declaration of Aboriginal title.

There are two primary gains in achieving aboriginal title: “the right to control the land” and “protection from government jurisdiction.”

Specifically, Aboriginal title trumps the Forest Act, which allows government and private companies access to “Crown” resources.

The Tsilhqot’in, now with Aboriginal title, are granted control of formerly recognized Crown land/recourses (Tsilhqot’in National Government, n.d.); they have regained the right to decide what developments occur on the land (economic, social, culture, etc.).

The Canadian government can intervene, however, in exceptional circumstances; they must either have express consent from the First Nation, or have strong justification — proven in court — before the intervention.

In a wider context, the granting of Aboriginal tile is significant to First Nations across Canada, many of whom are engaged in ongoing land disputes. Aboriginal title extends indigenous rights to allow the First Nation primary control of the land. The William Case Decision opens the door for other First Nations to be granted title of traditional lands beyond the previous “postage stamp” system that permitted plaintiffs extended rights to isolated areas that were proven to be used extensively for traditional purposes. In addition, the William Case Decision adds to ongoing negotiation/translation between Western colonial and First Nations ways of knowing/ruling. One academic article by Weir outlines how, in 2007, Judge Vickers stopped short of declaring full Aboriginal title in part because he was unable to meet his own aspirations: “In order to truly hear the oral history and oral tradition evidence . . . courts must undergo their own process of decolonization.” The Williams Case required the Tsilhqot’in Nation to prove the historical use of the land, however, “proof” is a culturally constructed concept that required “translation” between the oral histories of the Tsilhqot’in and the contemporary Canadian judicial system.

The William Case Decision is only one example of the dynamic relationship between Canadian and First Nations’ cultures, but one that has changed the way First Nations can protect and maintain their relationship with traditional territory.

The decision has implications to non-indigenous people as well; where once sources of economic development were accessible, today they may no longer be, or require extensive negotiation or sanctions.

John Loxley, a long respected academic and advocate in community development and economics, recognizes the tension between competing economic and cultural interests, and argues that Canadian and First Nations governments need to work together toward in order to achieve relevant and sustainable development.

“Together with this highly developed sense of stewardship over land and natural resources, Aboriginal communities maintain a value system which appear to be singularly relevant to the search for a more sustainable form of economic existence.”