It will take some time to measure the impact of the Supreme Court of Canada's judgment on aboriginal title, and the significant additional powers it gives aboriginal groups with that title.
The judgment, nine months ago, involved the Tsilhqot'in Nation, with about 3,000 people. They had been fighting commercial logging since 1983 in the territory they claimed as theirs.
Courtesy of the Supreme Court, their aboriginal title was affirmed, which meant in layman's language almost a de jure veto over anything done in that territory. The ruling was, of course, hailed by aboriginal leaders everywhere, but especially in British Columbia where there are few treaties.
Yes, the court said governments could assert some power to allow a development with a "compelling and substantial public purpose." But in the real world, as opposed to the one of legal reasoning, such a showdown between a government's "compelling and substantial public purpose" and an empowered aboriginal group would be messy at best and a stalemate at worst. A government would be very reluctant to put the amorphous "public interest" against a narrow but determined aboriginal one.
An optimist would say the court's ruling merely upped the requirements for any government or private interest wishing to do business on land claimed by aboriginals to take very seriously indeed their concerns.
Some business leaders in B.C. report that aboriginal leaders are anxious to cut deals because they understand the impoverishment of their peoples. Treaties and grand declarations and Supreme Court rulings are fine, but they are very far removed from indigenous people's more urgent requirements of employment, money and training.
So the Tsilhqot'in ruling, the optimists believe, will give aboriginal groups more confidence and non-aboriginal groups more certainty about how to enter into negotiations.
The optimists, however, will have trouble digesting the Affirmation of the Nemiah Declaration issued last month by the Tsilhqot'in Nation representing six communities. They were the victors before the Supreme Court, and the Nemiah Declaration indicates how they will use the ruling.
Forget any commercial activity in the Tsilhqot'in Nation territory. The declaration states there shall be no commercial logging, no "mining or mining explorations," "no commercial road building," "no dam construction." If any non-aboriginal wants to use the Nemiah Aboriginal Wilderness Preserve that the Tsilhqot'in just created, they can only do so with the Nation's permission through a system of permits that the Nation, and not the B.C. government, would issue.
The mining prohibition is especially interesting. Just before last year's Supreme Court ruling, the Tsilhqot'in National Government issued a draft mining policy that, among other objectives, aimed to "provide greater certainty for mining and mining exploration companies" and "ensure meaningful Tsilhqot'in participation in mining and exploration."
The Tsilhqot'in indicated that mining under certain circumstances would be acceptable if it respected "cultural and ecological values."
That was before the Supreme Court ruling. Now, the freshly minted Nemiah Declaration states "there shall be no mining or mining exploration." Period.
Companies and governments can now forget about the "need to consult" – another very vague concept – with this aboriginal group. They don't want any mining, or commercial logging, or road building, without which it is hard to imagine a wage economy being constructed in their rather isolated territory.
So what will their economy be? "Traditional ranching," the declaration says, and "hunting, fishing, trapping, gathering and natural resources." And, of course, a little money for the permits issued to "non-aboriginal" people to visit their territory. The traditional activities are all very noble. In the modern age, they amount to a subsistence economy or something only slightly better. This means government help for a lot of people.
The Tsilhqot'in fought very hard against commercial intrusions in the territory over which they claimed aboriginal title, and they won. They now have de jure autonomy within British Columbia over about 1,700 square kilometres, a kind of quasi-sovereign state.
Aboriginal title has to be legally affirmed – and a group has to want what the Tsilhqot'in got after the establishment of title – for the Nemiah Declaration to become a template for other British Columbia aboriginals.
The declaration will be heralded by some aboriginal groups, by aboriginal law professors and activists as a turning point in Canadian history.
Many aboriginal groups in B.C. don't want this kind of future for their children: pristine and poor. Young chiefs want a piece of potential action. It will take many years to see which vision prevails.