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B.C. land claim ruling may impact northern Ontario First Nations

Friday June 27, 2014

A landmark Supreme Court case awarding a British Columbia First Nation control over 1,700 square kilometres of its traditional land is being lauded by First Nation leaders in Ontario.

The unanimous decision declared Aboriginal title to Tsilhqot’in Nation on a wide swath of land that members of the northern B.C. First Nation have used for fishing, hunting and trapping since long before contact with settlers.

In making the decision, the Supreme Court rejected the argument of the B.C. provincial government that First Nations should only have full control of the areas where historic settlements existed.

“Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty,” wrote Supreme Court Chief Justice Beverly McLaughlin in the decision.

Nishnawbe Aski Nation Grand Chief Harvey Yesno said the ruling sends a strong message that the government of Canada must deal honourably with First Nations.

“The ruling takes a broad view of Aboriginal title and supports the ownership of lands that have been occupied and used for centuries by First Nations,” Yesno said in a statement. “This has widespread implications and provides useful guidance for all NAN First Nations engaged in land claims and various stages of economic and resource development projects.”

Ontario Regional Chief Stan Beardy echoed Yesno’s comments, calling the decision a precedent with implications for major projects such as the Ring of Fire.

“The case is important for clearer relations between First Nations, private business and the government and will further provide opportunity for First Nations to participate in the global economy,” Beardy said.

And Matawa First Nations chiefs congratulated the Tsilhqot’in Nation for its perseverance.

“The tremendous progress you’ve made today gives us renewed hope and strength in our ongoing fight for a just relationship with Canada and Ontario – one that similarly recognizes our Nations as Nations, and recognizes our title and jurisdiction over our lands,” the nine Matawa chiefs stated in a joint press release.

A lawyer working with the Matawa First Nations on Ring of Fire negotiations with Ontario said the Tsilhqot’in decision will help northern Ontario First Nations and other treaty First Nations because the Supreme Court has now established a “broad, functional” approach to defining Aboriginal rights and territorial control.

“The Supreme Court has said that Aboriginal rights are going to be defined in a way based on the realities of how First Nations people used the land and exercised control over their territories,” said Judith Rae of Olthius Kleer Townshend LLP.

Rae noted there are also legal differences between the Tsilhqot’in decision and treaty areas in Ontario.

“The Tsilhqot’in people did not have their rights established in any treaty,” Rae said, “so they were starting from scratch. In the historic treaty areas, where you already have agreements that rights exist, the dispute typically focuses instead on what were in the actual agreements, and what the scope of those agreements were.”

She added, however, that the Supreme Court’s approach to the Tsilhqot’in claim sends a message.

“The court has really come down on the side of saying that you cannot just apply a narrow, restricted view of Aboriginal rights,” Rae said.

The Tsilhqot’in Nation won a ruling at B.C.’s Superior Court in 2007, after a trial that started in 2002 and lasted more than five years. In 2012, the trial judge’s ruling was overturned at the B.C. Court of Appeal, which decided that the Tsilhqot’in had Aboriginal title only over areas where its people had established settlements prior to contact with Europeans.

That set up the Supreme Court’s landmark decision, released on June 26.

“There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held,” McLaughlin wrote in the decision. “Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title.”

Besides the issue of Aboriginal title, the Supreme Court also made clear that the consent of First Nations will be needed before the government can pass laws or move forward on development projects on lands under Aboriginal title. Without First Nations consent, the Supreme Court stated, the provincial or federal government can only pass laws impacting on lands under Aboriginal title if it shows a “compelling and substantial” benefit to the general public.

“Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest,” McLaughlin wrote.

Meanwhile, according to the Chiefs of Ontario, the 133 First Nations in Ontario have started working together on acquiring control over traditional and historical territories.

“Two weeks ago, the 133 First Nations in Ontario examined ways to assert inherent rights on traditional and historical territories, and ancestral homelands with a collective voice,” stated a COO press release.

“Tsilhqot’in is the Supreme Court of Canada’s confirmation of First Nations long-standing position, that title to the land has always been there based on spiritual beliefs as passed on for countless generations,” said Beardy. “Now it is time that government and industry uphold this decision.”

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