Last June, the Supreme Court of Canada delivered its most important ruling on aboriginal rights in the country's history, the result of a legal battle waged for decades by the Tsilhqot'in, a small First Nations community in British Columbia's central Interior. The court determined that aboriginal Canadians still own their ancestral lands, granting those communities powerful leverage over resource development.
What the top court did not explain was who provides the snow plows this winter in Tsilhqot'in territory.
The full effect of the judgment will likely take years to sort out. Can the Treaty 8 Tribal Association prevent the building of the Site C dam? Does any First Nation along the path of the proposed Northern Gateway oil pipeline have the right to keep Enbridge construction crews at bay? Those answers will begin to emerge in the coming year.
But in the meantime, John Rustad, B.C.'s Minister for Aboriginal Relations and Reconciliation, is dealing with more immediate issues, such as who is in charge of clearing winter roads. (For now, it was agreed, it will continue to be the province's responsibility.)
Mr. Rustad was travelling along winter roads in his home riding – Highway 16 from Burns Lake to Prince George – when he was reached by phone to talk about the tumultuous events of 2014 that fall within his portfolio. In British Columbia's northern communities, keeping the roads clear is no small detail, but it is just one of many issues being negotiated between his officials and the Tsilhqot'in leadership.
The Supreme Court has set the new rules of engagement, but it will likely be springtime before a pact is reached on the pragmatic matters of how things will work.
The journey to the country's top court began because the B.C. government could not resolve a conflict over commercial logging in the Nemaiah Valley 30 years ago. While the province retains the power to regulate land use in general, its authority is now curtailed. In the 1,700 square kilometres of Tsilhqot'in territory, the timber no longer belongs to the Crown.
The province fought this conclusion to the end. Mr. Rustad recalls reading the judgment last June with alarm – with so much of the province's land base subject to aboriginal title claims, there were fears this could bring British Columbia's resource-dependent economy to its knees. "But as I started to look at the ruling and what it meant, I realized it is actually a tremendous opportunity," he said.
With the final word from the courts now set down, 2014 should be remembered as the year that the province's 150-year history of uncertainty and conflict about aboriginal rights and title turned the corner. "For far too long, First Nations have not really been participating in the economy, in the resource activity that is happening on the land base in their traditional territories," Mr. Rustad said. "What the Tsilhqot'in case will do is give us an opportunity to work with nations to see what title looks like on the land base."
The protocol that his ministry is working on with the Tsilhqot'in leadership will be a model for what that looks like. The court ruling states that the nation has the right to use and manage its title land, while it envisions that the province will continue to protect the natural environment and manage the health of the forests.
But on the bigger issue – how far the authority of First Nations reaches when it comes to resource development on their lands – Mr. Rustad is evasive.
Under this ruling, the government can still encroach on aboriginal title, but only if it can justify that infringement in the broader public interest. Mr. Rustad does not want to say where he thinks the balance lies. His government announced the construction of Site C in December, brushing aside the objections of First Nations who do not want to see additional land in the Peace River valley flooded. The dam will harm aboriginal interests, but the province says it is in the public interest.
Mr. Rustad says his objective is to negotiate agreements with First Nations to allow development to proceed. "I suppose there may be some scenario down the road where we may have to look at [infringement], but our hope is we won't have to go down that road … I have not put my mind to where that bar should be, because I'm optimistic."
A battery of court challenges are set to be heard early in 2015 that aim to stop the Site C dam, relying on the strength of the Supreme Court decision.
That may test Mr. Rustad's optimism.
He is almost certain, however, to be correct in his prediction: "It's going to be an interesting year, for sure."
Justine Hunter