It's been all of nine months since the Supreme Court of Canada for the first time recognized a native community as having "aboriginal title" – to be specific, the Tsilhqot'in Nation, with a population of about 3,000 and an area of about 1,700 square kilometres, in southern British Columbia.
On March 19, Tsilhqot'in enacted its first law, which is called the Affirmation of the Nemiah Declaration.
Courts will likely grant the same or similar status to other communities in B.C., and perhaps elsewhere in Canada. So the Nemiah Declaration may be imitated by others. It's an important precedent.
What is "aboriginal title"? It doesn't mean an independent country or statelet, based on how things were before contact with Europeans. Nor is it the same thing as a reserve, a band, a band council, a municipal government or an area affected by treaty rights. But whatever it is, aboriginal title has elements resembling all those things.
In 1997, the Supreme Court decided in a case called Delgamuukw that there can indeed be such a thing, but it took until 2014 for the court to conclude that the evidence showed that Tsilhqot'in is actually an instance of aboriginal title – that this particular group of six bands has hunted, fished, gathered and lived in the area, without interruption, since before Britain (or France) planted a flag asserting its own sovereignty.
The sequence of events leading to this new (and very old) status started when the native people of Tsilhqot'in challenged the granting by the government of B.C. of a commercial-logging licence in the area, in 1983.
Not surprisingly, the first specific clause in the Nemiah Declaration says, "There shall be no commercial logging." Then it goes on to forbid commercial road-building, dam-building, mining and prospecting with a view to mining.
The declaration also says there will be a system of permits for non-natives who want to visit, hunt, fish, camp, canoe and hike on the land. It invokes the Supreme Court's authority for the recognition of aboriginal title.
Nothing is simple, however. Aboriginal title is very real, but it also has very real limits. The court said that, if there is "a compelling and substantial public purpose," an "incursion" or "infringement" on the aboriginal title can be justified. It's all a matter of balancing aboriginal title with Crown sovereignty.
This whole concept is a bit like the clause in the Constitution Act, 1867, in which the federal Parliament can pass laws about "works and undertakings for the general advantage of Canada," overriding the provinces.
The Supreme Court also said that B.C. and Canadian laws of general application continue to be valid – for example, a highway traffic act setting speed limits and the rules of the road, family-law statutes or the Criminal Code.
For the time being, Premier Christy Clark of British Columbia shows no sign of proposing any incursion; nor does the federal government. But at some time in the future, B.C. or the federal government could assert, in good faith, that a pipeline, highway, hydroelectric dam, natural-gas plant, railway or mining project is vitally essential to the economy and well-being of the province or the country – and the courts might agree. Or they might not.
In other words, Tsilhqot'in has a kind of sovereignty, but it is limited. And those limits are, unfortunately, vague – and subject to future negotiation or litigation.
The Nemiah Declaration (named after a meeting in the Nemiah valley in 1989) doesn't necessarily clash with the court's incursion doctrine, just because it's not mentioned, any more than any act of Parliament or a provincial legislature has to add that it just might conceivably be struck down under the Charter of Rights and Freedoms, some day.
Back in 2003 and 2004, there were some native road blocks in the Tsilhqot'in, because of the commercial-logging dispute.
In a recent radio interview, however, the tribal chairman, Chief Joe Alphonse, did not present the declaration as any kind of provocation. So there is reason to believe and hope that the declaration and subsequent laws of Tsilhqot'in will amount to a continuing dialogue.
There's a particular reason why aboriginal title has reared its head in British Columbia. When Canada persuaded B.C. to join this country in 1871, 14 treaties had been signed on Vancouver Island. Then the treaty-making stalled, except in remote northeastern B.C., which was grouped with much of Alberta and Saskatchewan in Treaty 8 – until negotiations began with the Nisga'a in 1993.
Premier Christy Clark is now so fed up with the dozens of bogged-down treaty negotiations that she announced on Wednesday that she will simply not appoint a new commissioner for the B.C. Treaty Commission, which is supposed to oversee and facilitate the process. In more than two decades of operation, the commission has spent $627-million, but has concluded just four treaties.
At this rate, it's possible that further aboriginal-title claims pursued through the courts will achieve more results, more quickly than treaty-making attempts. If so, the trend may spread beyond B.C. The Métis of Western Canada have a claim, saying that a shabby "scrip" buy-out scheme never really extinguished their title. This claim and others have been inching along, but the failure of the treaty talks in B.C. might energize the process of settling aboriginal-title disputes across Canada.
Let's just hope that lawyers are not the chief beneficiaries.