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Tsilhquot’in victory in the Supreme Court
July 8, 2014 6:26 PM   Subscribe

On June 26, the Supreme Court of Canada ruled in favour of the Tsilhquot’in people in their title claim to more than 1700 square km of land in British Columbia. The case is a landmark, and was a unanimous decision, supported 8-0 by the justices. The decision, is the first time the Canadian courts have recognized full aboriginal title to a specific tract of land by, and experts in the field expect the ruling to have an impact on future title questions worldwide (from Vancouver Island to New Zealand, or, one might say, from PKOLS to Aotearoa)

“If the First People of this country have title, then only good things gonna come”. Chief Roger William who played a lead role in the case, gives his thoughts immediately after the decision.

The recognition of aboriginal title rings in a new era, after years of frustration over treaty negotiations, says Dr. Judith Sayers. Dr. Sayers, from the Hupacasath First Nation is a lawyer, and was the elected chief in her community for fourteen years and the chief negotiator for land settlement for more than sixteen. She gives a succinct summary of the ruling, and its implications for resource development and BC business here.

Many commentators thinks the ruling will throw a wrench in plans for the Northern Gateway Pipeline:
Jeffrey Simpson worries “If Northern Gateway wasn’t dead before, it surely is now.” (He thinks stopping the Northern Gateway is a bad thing, though most in BC disagree ).

Simpson’s may be right about the impact on Northern Gateway, according to the lead counsel for the Tsilhquot’in:
“The implications are huge. “I’m certain Northern Gateway is crossing land that is not subject to treaty and could be subject to aboriginal title,” Mr. Rosenberg said. Although Northern Gateway is not directly at issue in the case, the court’s decision could change the rules of the game for the pipeline..

Former Ontario Premier, Bob Rae also weighs in, with an excellent opinion piece arguing the ruling is a win for all Canadians, and to the naysayers, he says:

“Those who complain that the courts are not good places to resolve these issues should look in the mirror and ask themselves what they have really done to allow them their speedy and just resolution in another way.”

And Rafe Mair has an interesting take, chronicling his own journey of understanding from (white) school boy to cabinet minister to columnist in BC, and his (eventual) support for first nations title.
posted by chapps (37 comments total) 47 users marked this as a favorite

 
Thanks for this great, meaty post. I'm gonna settle in and read.
posted by saucysault at 6:43 PM on July 8 [1 favorite]


I love it when people are strong enough to let right beat might.
posted by anonymisc at 6:54 PM on July 8 [1 favorite]


Beautiful post. I was hoping someone was gonna post this news, but you've gone way above and beyond.

Idle no more indeed.
posted by spitbull at 6:55 PM on July 8 [3 favorites]


I was camping with the Aseniwuche Winewak Nation the morning that this was announced as part of a cultural exchange program with my company. There was so much outpouring of emotion, I'm moved to tears remembering it now.

Growing up in the UK, my knowledge of the First Nations was mostly based on Saturday morning Lone Ranger episodes and John Wayne movies. The days I spent with the Aseniwuche Winewak Nation taught me so much about the history of my adopted home that I'm still processing it. How we could treat a people so badly, and still continue to do so, yet they received us with grace and kindness.

This is momentous and I was humbled to share this moment with them.
posted by arcticseal at 7:03 PM on July 8 [5 favorites]


This is a game-changer. Tectonic. Huge. An asteroid.

I'm surprised at how little coverage this has gotten in the media.

BC Iconoclast as usual as some good insights.
posted by KokuRyu at 7:15 PM on July 8 [5 favorites]


I think one of the more interesting aspects of the ruling is that it is based on precedents from Common Law (which I guess is why this might have worldwide implications).

I wonder what this means for British Columbia, where few treaties were ever signed? I wonder if the ruling will help expedite and simplify the land claims process going forward? Or if it will help in the arbitration process between conflicting land claims?

It's a new era, that's for sure.

It will of course be interesting to see how those bastards in the Harper government (and calling them bastards is an insult to bastards) use this ruling in the election campaign, damn them to hell.
posted by KokuRyu at 7:22 PM on July 8 [5 favorites]


For those not familiar with the concept of "aboriginal title" (I was not):
At issue is the concept of aboriginal title to land. In 1997, the Supreme Court said in a case known as Delgamuukw v. British Columbia that there is such a thing as aboriginal title – the right to possession of ancestral lands. It goes beyond the right to hunt and fish, and includes the right to benefit economically from the trees, minerals and oil and gas on, or under, the land.
posted by stbalbach at 7:26 PM on July 8 [2 favorites]


> BC Iconoclast as usual as some good insights.

Agreed. One caveat for folks reading it, however: at the moment the advertising on that blog is unusually intrusive and displays very questionable popovers. I do not recommend visiting it without an adblocker.
posted by metaquarry at 7:46 PM on July 8


Seconding spitbull's enthusiasm; I've been looking forward to the MF treatment of this for a while now.

My partner was a longtime scribe for the Musqueam band in central Vancouver via UBC, and was overtaken by shock at their former chief Delbert Guerin's passing this past 11 May, as she had known him well and quite enjoyed his wisdom, amiability, and all-around fun-loving nature. She asked me if I'd come along to attend his funeral later that week and I'm really glad I did, as I greatly, greatly appreciated the experience and I was very much humbled by it.

The eulogy given that day was from Guerin's friend Marvin Storrow, who'd been the original trial lawyer in the case. He related to the guests how Guerin had come to discover how the federal government had effectively defrauded the band out of their land and incomes deriving from the lease of that land, not only in the case itself but afterwards in defending itself against the band's legal action by outright lying to the courts throughout.

I remember what a then-expatriate American lawyer friend told me on his settling in the Vancouver area a decade ago: BC was heading for all sorts of clashes as nearly the whole of the province was sat on land that had never been signed over by the many First Nations previously resident. I'm so glad that his pessimism has not come to fruition, and that aboriginals throughout the province (and country) can celebrate this and other like-minded decisions from the Supreme Court of Canada.


My girlfriend emailed one of Guerin's sons the day this decision came out with congratulations. To say they are pleased with this outcome is a huge understatement.
posted by northtwilight at 8:05 PM on July 8 [3 favorites]


I've spent a lot of time* with the Xeni Gwet'in and I couldn't be happier for them. Their country - alpine forests and meadows in the rainshadow of the Coast Range, teeming with wildlife and wild horses, crystal clear light and water - feels like a magical place and the people there are so proud, happy and welcoming. By necessity (it's a bone-jarring two hour drive just to get to the nearest paved road, and William's Lake is another hour further) they do still live off the land - moose, deer, salmon, berries, wild potatoes etc, as well as their 'bush-ranched' cattle - and they live very well. The thought of this place being logged or mined, which various interests have fought for over the years, is obscene.
* for my architecture thesis project I helped them design and build two houses.
posted by Flashman at 8:23 PM on July 8 [8 favorites]


I must say that I am quite enjoying the experience of imagining how the establishment up north must be gnashing their teeth at this ruling. I've spent a lot of time in FSJ and Prince George and Terrace, and it's quite a racist environment, almost like apartheid, notably Fort St John. Many times I was insulted when traveling up to FSJ simply for being a government employee, and from Victoria to boot, listening to a bunch of self-entitled pudgy, dough-faced burghers complain about the BC government, the West Moberly First Nation, socialists, southerners, this and that.

I am certainly glad we have the Supreme Court that we do in Canada, to act as a check on this profoundly conservative, small-minded, destructive subculture in Canada.
posted by KokuRyu at 8:43 PM on July 8 [4 favorites]


Interesting. In New Zealand, when it looked like Māori might have rights via aboriginal title to the foreshore and seabed, the government rammed through legislation to effectively annul the court decision.

I'm not a lawyer so I can't say what could happen in NZ, but the precedents in our jurisdiction aren't encouraging. Perhaps Tūhoe could come up with something because of their continuous occupation, resistance and refusal to sign the treaty of Waitangi.
posted by i_am_joe's_spleen at 9:01 PM on July 8


wow. this is fascinating. the concept of aboriginal title is, well fascinating. Our land holding structure came about through forms of feudal tenure on land. In theory all land belonged first to the King, and it was his handing out of lands that constituted the second transfer of real property, at least in theory.

So when the U.S. came about, the same legal basis was created. The sovereign now was the Government of the United States and the states themselves which was recognized by the Treaty of Paris as the new absolute owner of the land, which then was transferred via sale into what are called fee simple estates.

But aboriginal ownership is, at least in theory, a superior form of land tenure. The land doesn't belong to the government at all. Reading the reality of the decision, not so much. But these sorts of changes in the underlying structure of the law are usually sea changes.

Fascinating.
posted by Ironmouth at 9:11 PM on July 8 [1 favorite]


...a procedural duty to consult and accommodate

...[must have] compelling and substantial objectives [for use of aboriginal title lands]

There must be a principled reconciliation of aboriginal rights with the interest of all Canadians.

Each of these tests is an earthquake. The next few years are going to be interesting.
posted by bonehead at 9:27 PM on July 8


This is indeed a fascinating development, but to put things in perspective a bit..

BC is 944,735 km^2. 1700 km^2 is about 0.18% of British Columbia, a very tiny fraction.
posted by Nerd of the North at 9:36 PM on July 8


In theory all land belonged first to the King, and it was his handing out of lands that constituted the second transfer of real property, at least in theory.

I've actually been reading that this is not the case, and that feudalism as is commonly understood never really existed.
posted by empath at 9:40 PM on July 8 [1 favorite]


If Northern Gateway wasn’t dead before, it surely is now.

I liked this piece in the G&M from a couple of weeks ago: How Gateway stokes a simmering fury among B.C. natives.

This decision completely changes legal environment for the Haisla (in Kitamaat) and the Coastal First Nations alliance (along the sea route).
posted by bonehead at 9:41 PM on July 8


I think Delgamuukw would have prevented the Enbridge pipeline from being built. Or there would be a very contentious blockade every inch of the way. It's hard to tell if Harper and the energy companies were being obtuse, arrogant, or obstinate, or out of touch, or all of the above.
posted by KokuRyu at 9:51 PM on July 8


BC is 944,735 km^2. 1700 km^2 is about 0.18% of British Columbia, a very tiny fraction.

This is true, but it is also important to remember that BC is largely unceded territory ... much of which could be subject to some kind of claim.

This map is interesting (from UBC's amazing museum of anthropology, showing how BC overlaps traditional territories)


Re the G&M article "How Gateway stokes a simmering fury among BC native" linked by bonehead, that is by the amazing Eden Robinson, author of the acclaimed Monkey Beach.. Her book (and I think her own background too) centers around Kitimat, the little BC town that voted no to Gateway coming through their town.
posted by chapps at 9:57 PM on July 8 [2 favorites]


She is part Haisla and part Heiltsuk (part of the CFN), as mentioned in the piece.

Last figures I've seen have almost all BC under claim for unsettled title (170% of total area claimed), with many competing and overlapping claims.
posted by bonehead at 10:00 PM on July 8 [1 favorite]


Thanks bonehead, posted before I read more carefully. Eden Robinson's article is (unsurprisingly) excellent and a nuanced look at various perspectives about the pipeline and other resource development.
posted by chapps at 10:16 PM on July 8


In the New Zealand case they just took it all back by nationalizing it? Wow.
posted by XMLicious at 10:44 PM on July 8


Many times I was insulted when traveling up to FSJ simply for being a government employee, and from Victoria to boot, listening to a bunch of self-entitled pudgy, dough-faced burghers complain about the BC government, the West Moberly First Nation, socialists, southerners, this and that.

I am compelled to speculate that any insults might have been launched not so much because of your being a government employee but conceivably that people could sense that they were being dismissed at 'pudgy, dough-faced burghers'.

I'm not one to defend the glaringly unpleasant deficiencies of the north -- being an FSJ (which is Fort St James, not Fort St John, for me at least) boy who got out as soon as I could, decades ago -- but it is not an overly controversial thing to say that many folks from the south understand the problems of the north at best only slightly better than northern folks think they do, which is: not at all.

There's open racism and stultifying conservatism and a whole raft of horrifying isms in small town Northern BC, but there are a hell of a lot of good folks up there, too. Even if there's no way in hell I personally want to spend more time there than a week every couple of years visiting.
posted by stavrosthewonderchicken at 11:02 PM on July 8 [1 favorite]


XMLicious, the background was that popular belief held that all NZ coastline was already in public ownership via a thing called the Queen's Chain. This was never really true in law, but the court case threatened this cherished idea that all NZers could enjoy all NZs beaches unimpeded. Add in a healthy dose of racism and an impending election, and the government of the day caved to populist pressure.

The shameful things from my POV as a lefty were:
- it was a leftwing government that did this
- the right wingers who should have leaped to the defence of private property rights against nationalisation said nothing, because really they only care about white people's private property rights.

The long term repercussions were a huge peeling off of the Māori vote from the Labour party to two new parties (the Māori Party and then the Mana Party) formed expressly to promote Māori interests. Because our proportional representation system gives small parties the opportunity to have elected representatives, and some seats are reserved for Māori, NZ politics is affected by the legacy of that legislation to this very day.
posted by i_am_joe's_spleen at 11:05 PM on July 8 [2 favorites]


Thank you for this fantastic post. The decision has been greeted with overwhelming joy in Vancouver (at least among the folks I know; mileage may vary), not least because along with its thundering moral rightness is the possibility of killing the Northern Gateway. Money has its own momentum, of course, and there's Harper; but a court decision like this is ammunition of the finest kind.
posted by jokeefe at 4:40 AM on July 9 [2 favorites]


I am compelled to speculate that any insults might have been launched not so much because of your being a government employee but conceivably that people could sense that they were being dismissed at 'pudgy, dough-faced burghers'.

Nah, when I went up there I was excited about just being there. Nobody from my agency had ever bothered to go to Fort St John or Terrace or wherever. My job was to connect the dots. Of course, people just wanted money, which I didn't have. I got sick of the insults, and the complaints about money etc when everyone had lots of money for big cars, big boats, big houses, and cocaine. I'm only human.
posted by KokuRyu at 6:48 AM on July 9 [1 favorite]


But aboriginal ownership is, at least in theory, a superior form of land tenure.

It's also worth noting, as many people within and without Canada are unaware, that First Nations treaties are directly with the Crown, not with the Federal Government, as one nation to another. Thus the furfurrah last year or so when First Nations representatives refused (quite legally) to meet with Harper and insisted on meeting with the Governor General instead. (I thiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiink they could legally force a meeting with the Queen herself, though I'm not at all sure on that point.)

Also, this is not only a great decision, it is an absolutely landmark decision that is a) amazing for First Nations people across Canada, and b) no doubt had Harper wailing and gnashing his teeth.

I call that a win-win situation.
posted by feckless fecal fear mongering at 9:05 AM on July 9


I'm way more familiar with the Mabo decision in Australia, so I will be very curious to follow this and see what more knowledgeable people have to say about how this Commonwealth decision may affect groups elsewhere. But that's for another time (though if you know something or know a link, please to mail me) ... for now, though:

Hooray! Great work, Tsilhquot’in people, on kickin' butt!
posted by barnacles at 9:10 AM on July 9 [1 favorite]


Well I'd be kind of surprised if the SCC had any kind of binding power on courts in e.g. Australia, but I'm pretty sure Supreme Courts everywhere will take decisions made elsewhere under advisement.
posted by feckless fecal fear mongering at 9:13 AM on July 9


Follow up note, after reading some of his other writing, I think I have overreached by saying Jeffrey Simpson supports the pipeline in the linked FPP article.
posted by chapps at 9:25 AM on July 9 [1 favorite]


Jeffrey Simpson is the closest thing we have to a national conscience.
posted by KokuRyu at 1:58 PM on July 9


Yeah, it was a juvenile misread... he describes a point of view and I read it as espousing the point of view.
posted by chapps at 5:28 PM on July 9


The first suits are starting.
posted by bonehead at 8:27 PM on July 10


The Gitxsan and Gitxaala must have been waiting for the result of the Tsilhqot'in case to launch theirs based on the outcome to respond so quickly, surely!

And meanwhile in Ontario another unanimous supreme court ruling finds only the government of Ontario can give logging rights in their title claim area. I'll be watching for analysis on these. My lay understanding/guess is the difference is the existence of treaties.
posted by chapps at 8:16 AM on July 11


Huh. My highschool history classes were pretty firm on the idea that all treaties were negotiated directly with the Crown, one nation to another, not with the government.

Also it's a terrible decision. Come on, SCC, you're usually better than this.
posted by feckless fecal fear mongering at 10:24 AM on July 11


Nerd of the North: "BC is 944,735 km^2. 1700 km^2 is about 0.18% of British Columbia, a very tiny fraction."

Over the years the various first nations have claimed upwards of 115% of the Province. This is a far reaching decision that will take years to shake out.

jokeefe: "Thank you for this fantastic post. The decision has been greeted with overwhelming joy in Vancouver (at least among the folks I know; mileage may vary), not least because along with its thundering moral rightness is the possibility of killing the Northern Gateway. Money has its own momentum, of course, and there's Harper; but a court decision like this is ammunition of the finest kind."

It sure will be interesting if a First Nation in the Frasier or Thompson watersheds between Kamloops and Vancouver evicts both national railways (as the Gitxsan have already done with CN) and makes it stick for even a short period of time.

Killing Northern Gateway won't stop the transport of oil sands petroleum; it'll merely move it to rail and or trucks. A less desirable transport mechanism by almost any metric.
posted by Mitheral at 3:17 AM on July 12


Just talked to my (ex-mayor) mom about this on the phone, and she's thrilled. The pipeline would have run across the (major salmon-spawn) river about 15km south of town, and almost everybody in the town (Fort Saint James) was strongly against it -- to the extent (which I find shocking, knowing the town as I do, from way back in the day at least) that there were regular organized protests against it.

In the meantime, a clean energy biofuel plant that will feed electricity back into the grid, using logging wood 'trash' that was previously just burned in situ, is going up just outside of town, a project she was in part responsible for launching during her last term as mayor.

I'm pretty proud of my reactionary, conservative little old hometown, these days, even though I haven't lived there for many decades.
posted by stavrosthewonderchicken at 4:31 PM on July 13 [3 favorites]


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