The Long Tsilhqot’in Journey to Aboriginal Title

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THE WEBSITE of the Xeni Gwet’in (pronounced Honey Gwi-deen) reads like a manifesto:

In a world full of travel promises, some kept others not, the Xeni Gwet’in people offer none. The Xeni prefer to simply share their home with respectful travelers—those who follow their hearts, live their passion and still have the capacity to be awestruck by mountain peaks reflecting on sparkling alpine lakes and by magnificent creatures at home in a pristine wilderness. This is a place of freedom and of contentment—a place to be shared with friends, new and old.

Roger William, chief of the Xeni Gwet’in, is celebrating. His community of Nemiah has achieved a major victory with Thursday’s Supreme Court of Canada decision, in Tsilhqot’in Nation v. British Columbia. The Xeni Gwet’in are one of six communities which together constitute the Tsilhqot’in (“tsill ko-teen”)—and it is on behalf of the Tsilhqot’in Nation that the William case was launched.

In the summer of 1999, I toured British Columbia from top to bottom and from side to side. Having passed through Tsilhqot’in territory—land to which one may now refer as under Aboriginal title—I know from experience the awe of pristine wilderness and mountain peaks reflecting on sparkling alpine lakes. My serpentine journey across a terrain of “freedom and contentment” wasn’t without its notes of discord, however. I recall the First Nations blockades, here and there, on roads leading into logging sites and posh resorts. That was fifteen years ago, when the dispute at the heart of the William case was already sixteen years along.

On October 30, 2013 a busload of Tsilhqot’in embark on the “Land Title Express,” a 4,300 kilometre journey from Williams Lake to Ottawa. The Elders will provide testimony to the Supreme Court of Canada. Hundreds of years of history, both written and oral, will be deliberated. As the case makes its way through the system, an estimated 90,000 documents—culled from hundreds of sources and spanning the history of Canada—have been considered. The arguments are detailed and complicated. Aboriginal title cases go back to the origins of Canada: just as the Tsilhqot’in case came in the wake of the 1982 constitution, one of the earliest aboriginal title cases, St. Catherines Milling v. The Queen, was argued in the context of a recent 1876 consolidation of federal statutes known as “An Act to amend and consolidate the laws respecting Indians”—the Indian Act.

It’s November 6, 2013, and the Tsilhqot’in Land Title Express has arrived to downtown Ottawa. Tomorrow, only blocks away, the Supreme Court will hear their arguments. The AFN National Chief, Shawn Atleo, has just delivered a speech of welcome. Next, Chiefs Roger William and Joe Alphonse, Chair of the Tsilhqot’in National Government, approach the microphone. “There’s only one decision we will accept,” says Chief Alphonse, “That’s full acknowledgment of our aboriginal rights and title. And it’s long overdue in this country.”

Aboriginal title cases are notoriously complex. Mohegan Indians v. Connecticut, considered by many to be the first aboriginal title case in history, took sixty-eight years to litigate. The William case, filed in 1989, took “only” twenty-five years to resolve. Even so, the B.C. Supreme Court trial, presided by Justice David Vickers, lasted a staggering 339 days. The court heard from elders, community leaders, historians, cartographers, archeologists, anthropologists, forest ecologists, hydrologists, ethnobotanists, wildlife ecologists, linguists, and more besides, at a cost estimated to be no less than $30 million.

The campaign which today bears the surname of Chief William began in 1983, not as a court case, but as a dispute over the British Columbia government’s grant of a commercial logging licence on land asserted as Tsilhqot’in traditional territory. Attempts at a negotiated settlement with the province failed to achieve a resolution. In retrospect, British Columbia’s 1983 breach of its duty to consult (this week affirmed by the Supreme Court) yielded a historical irony: a defensive action against the province and a logging proposal became, mid-stream, a broader (and ultimately successful) offensive to affirm aboriginal title.

Merle Alexander specializes in Aboriginal resource law. A negotiator for dozens of First Nations in British Columbia, Yukon and Newfoundland and Labrador, he characterizes the William decision as “a legal earthquake” and the most important aboriginal victory in the history of Canada, if not internationally. “The reason these cases keep coming up,” he says, “is the lack of implementation of the duty to consult that the courts have kept handing down, in case after case. There probably still isn’t a province or territory that has a fulsome consultation process.” He concludes that the Supreme Court has now placed a heightened emphasis on consultation, at a time when oil and resource interests are eager to push ahead with ambitious energy projects, and that the ruling “will change the tone of the negotiations.”

What does this mean for the relationship between the Crown and First Nations? No one is certain, beyond noting that consultation and informed, prior consent are now more deeply entrenched legal principles than ever before. Legal judgements are stones tossed into a stream: there will be ripples, but we’ll have to wait and see what will pass through the current and on what new trajectory it will embark.

Was the Supreme Court being grandiloquent, or was it merely noting the obvious, when it stated in its decision that “Aboriginals and non-Aboriginals are all ‘here to stay’ and must of necessity move forward in a process of reconciliation”? Canada is a piece of land, inhabited by people who are not going away and who have deep, historically-rooted differences of opinion over the land and its resources, specifically concerning the notion of dominion. Opportunistic land speculators, keen to profit from the bounty of the New World, used to assert the doctrine of “terra nullius.” Implicit in this Latin phrase (meaning land belonging to no one) was the notion that indigenous people are insufficiently civilized and industrious to claim sovereignty over territory, and that native land was ripe for the picking. Tsilhqot’in Nation v. British Columbia notes however that “the doctrine of terra nullius never applied in Canada, as confirmed by the Royal Proclamation.” On the contrary, Canada is a nation born of negotiation, treaty and mutual recognition.

According to the Indigenous Bar Association, the William decision is historic, marking the first Supreme Court declaration of aboriginal title since Section 35 of the Constitution Act of 1982 recognized and affirmed existing aboriginal and treaty rights. It has been the work of the courts to flesh out the substance of this recognition and affirmation.Tsilhqot’in Nation v. British Columbia, asserts the Indigenous Bar Association, “sends a strong signal to both federal and provincial governments to negotiate meaningfully with Aboriginal peoples, or face the prospects that the courts are now prepared to give force to [Section 35] aboriginal and treaty rights.”

In British Columbia alone, there are over 30 aboriginal title cases in abeyance, and more are now certain to arise from among the 203 First Nations within the province. The Supreme Court has articulated rigorous yet reasonable criteria for establishing title. The real story of this ruling may be the court’s eventual forcing of an obdurate political establishment to conduct its business along modified lines. The Supreme Court decision speaks amply of consultation and accommodation, the legal obligation of the Crown to reconcile its power with its duty, and the balancing of aboriginal rights with “the broader public good.” This is decidedly not judicial activism, or an opening of a floodgate: it’s rather the assertion of a balanced, nuanced and accountable approach to what the Xeni Gwet’in call the sharing of one’s home with respectful travelers.

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