VANCOUVER — When Chief Justice Beverley McLachlin sat down to write the Supreme Court of Canada’s decision recognizing the Tsilhqot’in First Nation’s aboriginal title to 1,750 sq. km of land in central B.C., she was acutely aware of the historic conflict on which she was ruling.
On one side sat frustrated aboriginal groups from across Canada, desperate to finally have validated a right the B.C. Supreme Court said existed 40 years ago. In the interim, aboriginal groups in Canada have won almost 200 court cases against government and industry, a string of judicial victories for aboriginal title that continued to pile up.
On the other side sat provincial and federal governments and resource industries, two groups that have nevertheless largely ignored this building aboriginal land-claim momentum.
And underlying it all was an often enduring and broad tension between aboriginal groups and non-aboriginal groups — a relationship more fraught in B.C. than anywhere else in the country because of the lack of signed treaties and the province’s tremendous natural resource bounty.
McLachlin and her peers on the court knew what they were facing, and what was needed: a decision that not only answered the questions of the case, but also the larger question of how to decide who controls the land, once and for all.
“What is at stake is nothing less than justice for the aboriginal group and its descendants, and the reconciliation between the group and broader society,” McLachlin wrote in the ruling. “A technical approach to pleadings would serve neither goal. It is in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter.”
It is a substance that has been building for decades. The Supreme Court first suggested the potential for aboriginal title in 1973. Adding Section 35 to the new Canadian constitution in 1982 further validated the concept, but neither document gave any direction as to how to make title declarations.
Several substantial court decisions since have beefed up the title argument.
In fact, lawyer and aboriginal land claims expert Bill Gallagher, author of the book Resource Rulers, argues that aboriginal groups in Canada have racked up an incredible winning streak on legal arguments.
“There have been all these court cases, from hydroelectric cases to Voisey’s Bay to transmission lines, a lot of it in Eastern Canada,” Gallagher said in an interview with The Northern Miner. “First Nations have won more than 190 cases. I see an evolution in that, building blocks being put in place, and sooner or later they were going to turn into this kind of ruling.
“In B.C., though, there are not a lot of like-minded people,” he continued. “Instead there’s a strong dynamic of almost willful denial: ‘This can’t be happening, this genie can never be allowed to get out of the bottle.’
“There is some serious logic in this ruling that requires all those people to reboot their perspective,” he said. “The word ‘consent’ appears two or three times in this judgment. That must be making a whole pile of corner office lawyers squirm, because they’ve been banking on that [not happening]. And they were dead wrong.”
Contentious rulings have to be strong and clear to withstand the battering they will receive. McLachlin’s ruling is a lesson in clarity and substance.
“The Chief Justice has delivered a masterpiece of legal architecture with this case because she knew the level of frustration and because she knows there are critics out there paid to keep this genie in the bottle,” Gallagher said. “In response she has written, on behalf of an unanimous court, a tour de force of how aboriginal law has developed, one building block on top of another. This case is so well written is can be described as legally and factually bulletproof.”
Add to that far-reaching. The decision applies to all non-treatied lands in Canada subject to an aboriginal claim. Most of B.C. falls into that category because most First Nations in the province have refused to sign treaties.
But it does not stop there.
“There’s a substantial area of Quebec that’s unceded, from the Schefferville mines to the Gulf of St. Lawrence and down along the Gaspé,” Gallagher said. “There are parts of Ontario. And all of the Maritimes have had nothing but Peace and Friendship treaties, which have already been analyzed by the Supreme Court and have been declared not to address the land ownership aspect.”
In all those areas, First Nations claiming that history supports their case for title now know precisely how that case will be tested. Governments and industry know as well.
The Tsilhqot’in pursued their claim in court beginning in 1990. The resulting judgment from the highest court in the land is a road map for how to determine aboriginal title and what that title endows, which includes control over resources and the attached right to decide how the land is developed.
The result should be clearer and more efficient negotiations. Unfortunately, it will almost certainly include mountains more litigation.
As Gallagher put it: “There’s a new sheriff in town, and all the players have no choice but to adjust.”
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