In a case that faced three courts and spanned more than two decades, the Tsilhqot’in First Nation of British Columbia’s interior won an unprecedented Supreme Court of Canada decision last week granting them title to 1,750 square kilometres of land.
Led by Chief Roger William of the Xeni Gweti’in people, the Tsilhqot’in
were spurred to legal action in the late '80s when the province allowed logging on their traditional territory in spite of their assertion of rights and title. In 1990, the Xeni Gwet’in launched a case for title over their traditional lands, relying on elders to give evidence in the form of oral history to demonstrate their people’s continuous use of the land from before contact to the present day.
“We take this time to join hands and celebrate a new relationship with Canada,” Chief William said. “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.”
First awarding recognition of the right to hunt, fish and trap on their traditional territory, then spring boarding off the historic Delgamuuk’w decision in 1997 that recognized oral history as admissible evidence requiring no further corroboration, Justice David Vickers of the B.C. Supreme Court ruled in 2007 that the nation could prove title to roughly half the original claim area. Vickers also ruled that both provincial and federal governments were failing in their constitutional obligation to the nation, and that the B.C. government had infringed upon the rights and title of the Tsilhqot’in people.
The B.C. Court of Appeal overturned the decision in 2012, ruling that title can only be applied to much smaller areas that were in constant use year-round, but a year later the nation was given leave to take the case to the Supreme Court of Canada.
On Thursday a unanimous 8-0 decision overturned the appeal court's ruling. "The claimant group bears the onus of establishing aboriginal title," Chief Justice Beverley McLachlin wrote in the decision. "The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms."
This is the first time a Canadian court has recognized Aboriginal title, and the decision could have far-reaching implications both for the future of resource extraction in Canada and for any further land claims, particularly in cases where no treaty has been signed, as in most of B.C. The ruling also raises questions
about the future of projects such as the Enbridge Northern Gateway pipeline and Kinder Morgan's Trans Mountain pipeline.
Thanks in large part to their location in the interior of the province and the relative isolation of much of their territory, the Tsilhqot’in Nation, comprised of six different communities, have been able to preserve significantly more of their language and culture than many of the coastal nations who were the first to face the violence of European settlers.
In spite of this, problems such as poverty, inadequate housing and substance abuse still plague the nation and its youth in particular, issues Chief Joe Alphonse raised on Thursday after the decision was released.
“We can barely afford to give our elders enough fuel money to go to Williams Lake to go see a doctor,” he told the Canadian Press. “A former tribal chief used to call our reserve a glorified concentration camp. I sure as hell hope we broke down some of those barriers today.”
The nation is also known for its largely successful battles with Taseko Mines Ltd since the '90s over the proposed Prosperity Mine project
. Located in Xeni Gwet’in territory west of Williams Lake in the Nemiah Valley, the original plan for the mine proposed draining Fish Lake and using it as a tailings storage facility for an open pit mine that would stretch for several kilometres, wiping out several other streams and lakes in the process.
The proposal was first rejected by a Canadian Environmental Assessment Act (CEAA) review panel in 2010 and then again in 2012 after a second panel determined the environmental impact of the proposal was still too great to mitigate.
Since the federal Ministry of the Environment formally rejected the mine in 2013, Taseko has launched two judicial reviews,
the first alleging that the environmental review panel ruled based on the wrong model for the tailings pond, and the second accusing the federal government of wrongdoing.
Image Credit: Photo by Erin Flegg