By: Sam Heaton
Credit: Pei-Ju Wang
Over 25 Tsilhqot’in leaders, youth, women and elders visited unceded Algonquin territory/Ottawa on Nov. 5-8 in what has been called an historic delegation.
Chief Roger William of Xeni Gwet’in First Nation, one of the six Tsilhqot’in communities that make up the Tsilhqot’in Nation, first launched legal proceedings against British Columbia in 1989 and 1998 to prevent forestry operations on Xeni Gwet’in territory. Those proceedings have led to the case currently before the Supreme Court.
In the 2007 B.C. Supreme Court decision on Tsilhqot’in Nation v. British Columbia, Justice David Vickers ruled that the Tsilhqot’in people have Aboriginal rights to hunt, trap and trade animal skins and pelts in the claimed area of Tachelach’ed and the Trapline Territory, around 5% of their traditional territory.
The “all-or-nothing” title claim, wherein the plaintiff asked for either full title area recognition or none at all, was dismissed, but Vickers gave the opinion that title had been proven with regards to 40% of the claimed area (2% of their territory).
All parties appealed this decision and were subsequently heard in the B.C. Court of Appeal in 2010. The court upheld the 2007 rights judgment, but struck down the Aboriginal title decision, stating that title could be claimed only to areas specifically occupied and intensively used.
It is this narrow interpretation of title that has been appealed in Canada’s highest court. Throughout the Supreme Court hearing on Nov. 7, interveners for the Tsilhqot’in Nation and the attorneys general of the provinces respectively gave their contending interpretations of Aboriginal title.
Louise Mandell, lawyer for the Union of British Columbia Indian Chiefs, captured the essence of the contention in her intervention to the court, asking, “How did the province gain control of the homelands of Indigenous peoples in British Columbia in the absence of treaty?”
Mandell pointed out that, “The law governing the assertion of Crown sovereignty, the foundation of relations between Indigenous people and the Crown, is stated in the [1763] Royal Proclamation, which spoke of unceded lands being reserved to the Indian nations, requiring the crown to acknowledge the preexisting rights of Indigenous people to their land and laws as legal rights.”
“Based on the doctrines of Discovery and Terra Nullius, the government posits that provincial title is presumed and complete, while Aboriginal title is denied, acknowledged only when proven in court or recognized by governments through treaty.”
Several events were organized to welcome the Tsilhqot’in people to Ottawa and show support for what could be the first granting of Aboriginal title by the Supreme Court in Canadian history. These included a morning ceremony and afternoon rally at the Supreme Court, a feast after the day in court, and a panel discussion Nov. 8 on the legal aspects of the case.
Throughout the gatherings and discussions held to support their fight, Tsilhqot’in leaders stressed that this legal case is an extension of their ongoing resistance to colonialism. Examples given were the 1864 Tsilhqot’in War, when six war chiefs were executed by British Columbia as well as the current fight against the New Prosperity mine proposed by Taseko Mining on their traditional territory.
The decision of this Supreme Court case will impact not only the Tsilhqot’in but also other First Nations across Canada, including the Algonquin and Mik’maq who have never ceded their territory.
The ruling, however, is not expected until some time next year.
This article first appeared in the Leveller Vol. 6, No. 3 (Nov/Dec 2013).
