Aboriginal peoples in the province of British Columbia can stake a broad claim to their traditional territories due to a landmark victory at the Supreme Court of Canada, a decision that natural resource companies had warned would create investor uncertainty.
Today’s ruling marked the first time the Supreme Court has recognized aboriginal title to a specific piece of land, and is expected to have predominant application in resource-rich Pacific Coast province, where there are unresolved land claims.
The case involved a claim to 1,750 sq km of land in central part of British Columbia. The court ruled that aboriginal groups are entitled to prevent forestry in this particular tract.
The unanimous 8-0 decision in Tsilhqot’in Nation v. British Columbia overturns an British Columbia Court of Appeal decision that had restricted aboriginals to having title only in the small areas where they had proven continuous and intensive physical use.
The decision allows the First Nation in this case to ban commercial logging. But the ruling also said the government can allow resource projects to go ahead, even if they infringe on aboriginal title, in some cases where there is “a compelling and substantial public interest.”
The decision adds conditions that would be expected to make it more difficult, but not necessarily impossible, for developments such as pipelines, mines and forestry to proceed without aboriginal consent.
There are no new pipelines being proposed to pass through this particular area. Enbridge Inc.’s planned Northern Gateway pipeline route lies well to the north.
In addition to proving compelling public interest, the government would have to prove a proportional impact, that the benefits of development projects would not be outweighed by adverse effects on aboriginals. And infringements cannot proceed if they would deprive future generations of aboriginals of the benefit of the land.
Assembly of First Nations Regional Chief of British Columbia Jody Wilson-Raybould said: "This decision means we now have the opportunity to settle, once and for all, the so-called 'Indian land question' in B.C. and elsewhere in Canada where Aboriginal title exists through good faith negotiations.
"But in the short term, this decision will expose for all Canadians just how ineffective and limited the current mechanisms are for Canada to actually reconcile with First Nations when the Crown is required to do so. It is essential that the federal government coordinate its efforts and develop a broad reconciliation framework, which includes scrapping the existing comprehensive claims policies, overhauling the broken B.C. treaty making process and developing new and appropriate mechanisms to support reconciliation including self-government recognition legislation."
Resource companies have said recognition of broader territorial title for aboriginals would undermine their ability to attract capital and realize a return on resource projects.
The dispute over the Tsilhqot'in land began in 1983 when British Columbia granted Carrier Lumber Ltd a licence to cut trees in part of the territory at issue. The aboriginals objected and blockaded a bridge the company was upgrading. Twelve years of court wrangling over aboriginal title followed.
"The nature of aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses . . ." the court said.
Update 1:15pm: comments from AFN and background added.