Lawyers fight Chilcotin War

By on October 13, 2009

VICTORIA – Please bear with me, dear reader, for another walk through the dark forest of aboriginal rights. I promise you news and a ray of light on the far horizon.
First, the trail so far. Regular readers will be aware of the relentless march of aboriginal title cases through Canada’s highest courts. Each victory seems to lead to another, more sweeping lawsuit, lending more weight to the claim made by some, including NDP leader Carole James, that most of B.C. is “stolen land.”
The governments of Canada and B.C. are increasingly worried that it’s not aboriginal title that’s in question today, but rather Crown title in the vast areas of this province that were never subject to treaties.
The recent Tsawwassen and Maa-Nulth treaties appeared to be a breakthrough, but B.C. has been waiting for two years for Ottawa to sign the Yale treaty. Ottawa, notably Indian Affairs and Fisheries and Oceans, appears too dysfunctional to accomplish this. Other treaties are stalled over fisheries as well.
At the centre of B.C.’s legal battleground is the Chilcotin, or rather Tsilhqot’in territory. In 1864 this region was the site of B.C.’s only shooting war between natives and gold seekers. The Tsilhqot’in won, in the harsh but timeless measure of bodies on the ground.
Today it’s a war of lawyers, not rifles, and they may win again. Government lawyers appear poised to appeal a 2007 decision by B.C. Supreme Court Justice David Vickers, which was described by Victoria lawyer Jack Woodward at the time as a “100 per cent victory for the Tsilhqot’in people with respect to aboriginal rights.”
Essentially, Vickers ruled that were it not for a technicality, the Tsilhqot’in would own outright 2,000 square kilometres of the Nemiah Valley, so thoroughly was their aboriginal title proven in 337 trial days, at a cost of nearly $30 million to the taxpayers of B.C. and Canada.
Now the news: the Tsilhqot’in have filed a new action to stop environmental permits from being issued for what’s known as the Prosperity gold mine project. I’m told no one has gone to court to try to stop permits before they are issued, so this is another test case.
The government takes some solace in a recent court decision rejecting an aboriginal claim to stop extension of the Cache Creek landfill, but that was a weak, disorganized claim.
There’s nothing weak or disorganized about the Tsilhqot’in. Terry Glavin’s elegant 1992 book, Nemiah, the Unconquered Country, sets out their 1989 declaration of the Nemiah Aboriginal Wilderness Preserve: No commercial logging. No mining. No flooding or dam construction. “Respectful” campers and hunters are welcome, if they have Tsilhqot’in permits. “We are prepared to enforce and defend our Aboriginal rights in any way we are able.”
Aboriginal Relations Minister George Abbott tells me that despite the collapse of this year’s legislative effort to recognize a form of title across B.C., his government does not and will not dispute the fact that native people have occupied B.C. for 10,000 years.
In court, however, it’s not up to the B.C. or federal government. Common law demands that title be proven.
Can this maddening grind of lawsuits be stopped? In a recent interview, First Nations Summit Grand Chief Ed John offered a possible way forward.
“The idea of a proclamation put out by the Lieutenant Governor, for example, may be a way in which to bridge the divide between the province and the federal government,” he said.
I’ll take a closer look at that idea in a subsequent column.
Tom Fletcher is legislative reporter and columnist for Black Press and

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