A landmark decision involving aboriginal rights and title in British Columbia is already having ripple effects, with one First Nation saying it would file a new court case in its wake amid speculation that the ruling could shift a sluggish treaty-making process into high gear.
The Supreme Court of Canada on Thursday confirmed the Tsilhqot’in Nation have aboriginal title to about 2,000 square kilometres of land in interior B.C., upholding a 2007 ruling by the B.C. Supreme Court that had been overturned on appeal. The decision – the first to recognize aboriginal title to a specific tract of land – is expected to put pressure on both the federal and provincial governments to negotiate treaties in B.C.
“The province certainly got a kick in the pants today – it really makes them much more motivated to go to the [treaty] table and negotiate,” Gord Christie, a law professor at the University of British Columbia, said on Thursday.
The majority of B.C. First Nations have yet to sign treaties, creating uncertainty surrounding land and resource ownership, use and management. The federal and provincial governments, along with the First Nations Summit, launched the B.C. treaty process in 1993. But to date, only two treaties – the Maa-nulth and Tsawwassen – have been implemented. Others are at various stages in the process.
Thursday’s court ruling “gives more strength to having modern-day treaties that are really clear,” said Sophie Pierre, chief commissioner of the B.C. Treaty Commission.
“The Supreme Court of Canada has been pretty clear today that aboriginal title does exist and it does include ownership to land and it has to be dealt with in a fair and honourable manner – and how else do you do that, other than through negotiations?” she added.
Within hours of the Supreme Court of Canada ruling, the Tahltan Central Council – representing the Tahltan people of northwestern B.C. – announced it would go to court to seek a rights and title claim in its fight against a proposed coal mine in what the Tahltan consider their traditional territory.
The Tahltan Central Council opposes plans by Fortune Minerals to develop the Arctos Anthracite Project, a metallurgical coal deposit in an area known as the Sacred Headwaters because it is the source for the Skeena, Stikine and Nass rivers.
In April, the council said it had banned Fortune Minerals from its territories. Emboldened by the Tsilhqot’in decision, the Tahltan now want that decision backed up in court.
“This ruling confirms what we have been saying for over a hundred years – that the province and Canada have to respect title,” Tahltan Central Council president Annita McPhee said Thursday. “They just can’t keep making decisions without our consent … and trying to start a coal mine in the headwaters of three major salmon-bearing rivers does not have our consent.”
First Nations leaders who gathered Thursday in Vancouver to celebrate the decision said it should spur governments to negotiate and settle treaties.
“The government has a legal obligation to sit down in good-faith negotiations with us – so we can conclude treaty agreements in this province that have been underway for the past 20 years with little to no resolve on the outstanding issues,” Cheryl Casimer, spokeswoman for the First Nations Summit, said at the summit.
The Tsilhqot’in decision is not likely to end the debate over another resource project: the proposed $1-billion New Prosperty mine, located about 125 kilometres southwest of Williams Lake.
In February, Ottawa turned down the project – which is bitterly opposed by the Tsilhqot’in National Government – following an October report from a federal review panel that concluded the mine would result in “several significant adverse environmental effects,” including on water quality in Fish Lake, a trout-bearing lake in the region.
The mine’s proponent, Vancouver-based Taseko Mines, has since filed for two judicial reviews of the federal decision, challenging the process and the information on which the government based its decision. Those processes remain underway.
On Thursday, Taseko said the Supreme Court of Canada ruling offers a “new opportunity” for the proposed mine because it falls outside the title area outlined in the court decision and is “located in an area where aboriginal title does not exist.”
Joe Alphonse, tribal chair with the Tsilhqot’in National Government, disagreed, saying the Supreme Court of Canada decision “kills” the proposal.
“It kills it – it’s done,” Mr. Alphonse said following the chiefs’ press conference.