First Nations people across Canada celebrate Tsilhqot'in First Nation's win in Supreme Court ruling. The significant victory gives hope to other First Nations peoples 'nations-wide'
Connie Walker, CBC News (edited) 26 June 2014
It's being hailed as a significant victory for First Nations, and First Nations people across the country are celebrating the Supreme Court of Canada decision granting title to more than 1,700 square kilometres of land in B.C. to the Tsilhqot'in First Nation.
"This decision is such a huge, most important decision that I've been a part of." said Tsilhqot'in First Nation Chief Roger William.
Jody Wilson-Raybould, Assembly of First Nations regional chief said, "This decision ... will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country."
Supreme Court's Tsilhqot'in First Nation ruling a game-changer for all Tsilhqot'in First Nation granted B.C. title claim in Supreme Court ruling SCOC title claim decision could apply to large parts of Quebec, expert says William and other B.C. leaders were together in a boardroom in Vancouver when they heard the news.
"I was completely surprised. I can tell you this whole room erupted in cheers and tears after this long hard struggle." said Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs.
The unanimous ruling grants the Tsilhqot'in Nation title to a large area outside its reserve. It covers 1,700 square kilometres of land the group has traditionally used.
The Tsilhqot'n First Nation has been fighting the case for more than two decades.
As soon as the decision was announced, speculation began about how it would affect other First Nations across the country.
"This decision building on previous Supreme Court of Canada decisions will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country where there is un-extinguished First Nations title." said Assembly of First Nations (AFN) Regional Chief Jody Wilson-Raybould.
"Just because the Supreme Court of Canada has issued this claim doesn't mean that the government is going to start giving all the land back to the First Nations people." said Métis lawyer Garth Walbridge.
"But it could have a serious economic impact. The size of the boulder that Enbridge is rolling up the hill to get their pipeline built just got much bigger today, because the First Nations in that part of the country now have much much bigger say in whether or not Enbridge can go ahead."
Mi'kmaq lawyer Pam Palmater said this decision provides important clarification over what having First Nations title means and how it will affect resource development projects.
"The First Nations group in question has the exclusive authority to decide who uses that land and who benefits from that land and, as a result, provincial laws don't apply."
Chief Glenn Hudson of the Peguis First Nation said the Supreme Court ruling will have implications for First Nations in Manitoba.
"In Manitoba specifically, we're talking about hydro developments — I know Bipole III, as far as the dams in the north, flooding that is occurring in our traditional lands," he said.
"They need to come and sit with us to ensure that these negative impacts are addressed when it comes to our communities."
In a statement, AFN acting spokesman Ghislain Picard said, "The court has clearly sent a message that the Crown must take First Nations title seriously and reconcile with First Nations honourably. This decision will no doubt go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada.”
Indigenous Bar Association (Canada) - Media Release
Ottawa 26 June 2014
Indigenous Bar Association Applauds Supreme Court Decision in Tsilhqot'in Nation v British Columbia (William Decision)
The Indigenous Bar Association (IBA), applauds the William decision handed down today in a unanimous judgment by the Supreme Court of Canada. The IBA, a national association of Indian, Inuit and Metis lawyers, judges and laws students intervened in the case, urging the Court to consider the importance of Indigenous laws in articulating a test for Aboriginal title. The Court’s decision rejected arguments made by the Federal Government and the BC Government that Aboriginal title required proof of intensive physical occupancy, in what has been widely criticized as the "postage stamp" theory of aboriginal title. In denouncing the Crown theory of Aboriginal title, the Court opted instead for a territorial-based test for proving Aboriginal title, which gives equal weight to Indigenous laws and the Aboriginal perspective.
The IBA President, Koren Lightning-Earle stated: "The IBA would like to congratulate the Chief William and Tsilhqot’in People for bringing us this important victory. We are happy to have been a part of this landmark case."
The Supreme Court overturned the decision of the BC Court of Appeal, which was based on the postage stamp theory, and upheld the judgment of Justice Vickers of the BC Supreme Court, finding that the Trial Judge’s decision contained no palpable and overriding error. The Court also held that Justice Vickers applied the correct legal test, and, in rejecting Crown arguments, held that:
"In summary, what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the aboriginal group in question – its laws, practices, size, technological ability and the character of the land claimed – and the common law notion of possession as a basis for title."
David C. Nahwegahbow, IPC, LSM, who acted as legal counsel for the IBA in the case, said: "This was IBA’s first intervention and we are thrilled that it was such a positive outcome. The decision is historic because it is the first time since the entrenchment of Aboriginal rights in the Constitution Act, 1982, that the Supreme Court has issued such a declaration of Aboriginal title."
The case is also important for making it clear once and for all that the doctrine of terra nullius has no place, and is not part of Canadian law. "Terra Nullius" means "empty land" and is a racist doctrine that legitimized the taking of Indigenous lands by European powers during the colonial period on the basis that lands occupied by Indigenous peoples were open for the taking because Indigenous peoples were not sufficiently civilized to be considered occupants of the land.
The case 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 Aboriginal and treaty rights in sect 35 of the Constitution Act, 1982. The Supreme Court emphasized the importance of obtaining Aboriginal consent for development on their lands. The reference to consent is significant particularly in light of UN Declaration on the Rights of Indigenous Peoples, which called for free prior and informed consent before development on Indigenous lands.
Koren Lightning-Earle concluded: "The Supreme Court of Canada has issued a very balanced ruling in the William decision, reflective of a country whose legal system is rooted in both common law and indigenous legal traditions."
The Indigenous Bar Association in Canada (IBA) is a non-profit professional organization for Indian, Inuit and Métis persons trained in the field of law. IBA membership consists of Indigenous lawyers, judges, law professors, legal consultants and law students. The primary purpose of the IBA is to promote respect and recognition of Indigenous laws.
FOR MORE INFORMATION: contact Koren Lightning-Earle, President of the Indigenous Bar Association at: firstname.lastname@example.org or at 780.721.2345 or David C. Nahwegahbow at: email@example.com or (705) 325-0520 or (613) 795-1504 or visit our website at www.indigenousbar.ca.