by Hilary Beaumont
Visitors from the Tsilhqot’in First Nation in BC enjoyed a sort of celebrity status at this year’s AFN gathering in Halifax. They received pats on the back, held their heads high, and practiced telling the story of how they appeared before the highest court in Canada.
“[The Elders told me] when you go to court, you have nothing to worry [about] because you’re coming from your heart, and you’re telling the truth,” Chief Roger Williams of Xeni Gwet’in, one of the six bands in the Tsilhqot’in First Nation, said when he took the stage Wednesday evening. “Everything I said was the truth, from my heart.”
At the end of June, the Supreme Court of Canada upheld aboriginal land title to a territory for the first time in the country’s history. The decision was unanimous, and means Tsilhqot’in now owns 1,700 square kilometres of land, and the resources and economic benefits that come with it.
Land ownership has been a topic of lengthy discussion at AFN so far. At a shale gas presentation, AFN delegates discussed the Tsilhqot’in ruling and whether it could be relevant in other disputes over land use. A speaker from Fort Nelson said fracking companies are withdrawing large volumes of water from First Nations’ traditional land, alarming residents. Air and water pollution are also major concerns for them.
Tsilhqot’in now has a greater say over industry activity on their land. The courts stopped short of requiring companies or the crown to obtain consent from a First Nation prior to development, but strongly encouraged them to seek permission first.
Lawyer Jay Nelson, who helped with the case, said the Supreme Court had swept aside the previous interpretation of land rights, which saw ownership as “small spot theory of title,” in favour of a wider territorial interpretation. Title now extends to all of the lands a First Nation regularly used and controlled at the time the crown asserted sovereignty, he said.
There are only two limitations: the lands can’t be sold, and they can’t be used in a way that destroys them for future generations.
“Perhaps the most significant aspect of the judgment was that it send a strong signal that the courts can and should and will declare aboriginal title on the ground if it’s supported by the facts,” Nelson said.
Importantly, he continued, the court told the crown it has a positive legal duty to actively resolve outstanding land claims, effectively saying: “Get on with it.”
“It lit a fire under the crown with this decision,” Nelson said.
“If you’re in an area that you protected with your laws, your language, you can prove title,” Williams said. “…The game has changed. We’re coming from a place of power and we’re going to be setting precedent because this is huge.”