“Absolutely electrifying!”
When the Grand Chief of the Union of BC Indian Chiefs describes a court ruling that way, you know it’s going to be a good day.
Grand Chief Stewart Phillip so happy because the Supreme Court of Canada in a unanimous decision today recognized the land Title of the Tsilhqot’in First Nation in central British Columbia over a wide swath of their traditional territory.
So what’s the big deal?
This is the first time the Canadian high court has ever granted a declaration of Aboriginal Title to a First Nation. This sets a precedent for all outstanding land title claims in Canada. With hundreds of outstanding land claims by Aboriginal People in Canada, this paves the way for others to follow.
It is official recognition from Canada of a First Nation’s ownership over a large portion of their traditional territory. This means the court recognizes First Nations effectively control what does and does not happen in the territory. They are finally recognized by the court as rightful owners.
"Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” Judgment of the Supreme Court
First Nations with recognized land title now must provide consent before any projects happen in their territories. This includes pipelines, mines, forestry, all of it. They are recognized as decision-makers of the land and determine what benefit they derive from the activities they approve.
This is important for two reasons:
a) Hishuk Ish Tsawalk: Everything is One. This is a phrase I have been taught for years by the Nuu-chah-nulth First Nations on Vancouver Island. It is essentially one version of the approach that many First Peoples take to their territories. They have and continue to manage their territories for their multi-dimensional values including ecological, and for future generations. They view themselves as a seamless part of their territories so they manage their territories in a fully integrated fashion, living the interdependent nature of their territories.
The court is recognizing in Canadian law the First Nations’ approach to managing lands.
“Aboriginal title…cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.” Judgment of the Supreme Court
b) Greenpeace is working for environmental justice, which means the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
We recognize that the current state of environmental, economic and social un-sustainability has, in great part, been caused by the heedless exploitation of traditional territories where Indigenous peoples have been ignored and their authority eroded. We work to live up to our commitment of respect for Indigenous rights and support for the just settlement of outstanding Aboriginal Rights and Title issues as an integral part of the process of developing an ecologically and socially sustainable society with equitable outcomes for all.
The lack of appropriate reconciliation with First Nations is a block that stands in the way of meaningful reconciliation between First Nations, governments and the rest of Canada, which is a critical step to our country moving forward in a genuine way on other justice and environmental issues such as climate change and biodiversity conservation.
This court ruling is a step towards reconciliation.
The court has also expanded their recognition of Aboriginal title beyond the small reserve lands that First Nations were moved to during colonization to include the territory they relied on for their livelihood. First Nations use varying sizes of territory to satisfy their community needs to hunt, travel, gather and trade, sometimes millions of hectares. This ruling recognizes their title over the larger territory.
“There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the court of appeal held…Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title.” Judgment of the Supreme Court
This all means that projects like the Prosperity Mine, which has been held back twice, now cannot move forward without the Tsilhqot-in’s consent. Any project that crosses First Nations territory where an outstanding land claim exists could be held up until land title is resolved and consent given by First Nations. It seems impossible that a project like Enbridge’s Northern Gateway project will ever receive consent of First Nations once land title is established.
Long Time Coming
This ruling creates important precedent for Aboriginal People with recognized land title under the courts. This is costly and takes commitment, as we saw with this Tsilhqot’in case. It has been on-going for 25 years with a 339 day trial that started in 2002. No other Aboriginal People today have the recognition of land title that was declared to the Tsilhqot-in today. It shouldn’t take this long or be this hard to establish yourself as the rightful owner of land in the eyes of Canada.
Current Situation
Up to today, governments’ responsibility towards a First Nations is a duty to consult them on plans for their territories and make accommodations if their interest is impacted. It means they are asked their opinion but do not have the legally recognized right under Canadian law to say yes or no to a projects. This will continue to be Canada’s approach to all Aboriginal People who have not yet established land title in the courts.
This Canadian approach treats First Nations much like stakeholders on the land, not owners and governments in their own right. It doesn’t explicitly respect First Nations’ tribal laws and governance systems. And importantly, this approach ignores the UN Declaration of Rights of Indigenous People that Canada signed on to that requires the Free Prior and Informed Consent of First Nations to operate in their territories. What this approach does do is further entrench ownership over Canada in colonial government hands. That asserted ownership by the Canadian and provincial governments is the reason we are dealing with a real-time legacy of violence, inequity and racism towards First Nations based on programs to assimilate and eradicate First Nations culture in Canada. The Truth and Reconciliation Commission is one starting point to learn about this history and the deep need for reconciliation between Aboriginal People and the rest of Canadian society.
However violent the history, the Tsilhqot-in First Nation are proud and humble in the wake of the announcement today that takes a step towards reconciliation, extending their hand to Canada and looking to a more equitable future.
“We take this time to join hands and celebrate a new relationship with Canada. We are reminded of our elders who are no longer with us. First and foremost we need to say sechanalyagh (thank you) to our Tsilhqot’in Elders, many of whom testified courageously in the courts. We are completing this journey for them and our youth. Our strength comes from those who surround us, those who celebrate with us, those who drum with us.” - Plaintiff, Chief Roger William of Xeni Gwet’in.
Let that be the final word for today.
Stephanie Goodwin is Greenpeace’s B.C. Director. She works and lives in Vancouver.