The Council of Canadians celebrates the precedent setting 8-0 unanimous decision by the Supreme Court of Canada acknowledging aboriginal title to more than 1,700 square kilometres of land to the Tsilhqot’in Nation in British Columbia.
This evening, the Toronto Star reports, “Maude Barlow, chair of the Council of Canadians, which intervened in support of the Tsilhqot’in at the high court, said, ‘At last, this is a sign to Enbridge that there is no blank cheque for the Northern Gateway project’.” The article cites the example that, “The Haida have an active title case claiming ownership of lands and B.C. coastal waters through which the Northern Gateway project would dispatch oil tankers to ship Alberta bitumen to Asian markets.”
The Georgia Straight adds, “[Grand Chief Stewart Phillip] noted it could have ‘enormous’ implications for resource projects proposed for B.C., including Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline, as well as natural gas terminals and pipelines encouraged by the government of Premier Christy Clark.” He also commented, “Today is a new day. We are in an entirely different ballgame. …We’re moving away from the world of mere consultation into a world of consent.”
Not surprisingly, the Harper government opposed the Tsilhqot’in claim and had only a limited comment on the ruling today.
What implications does the ruling have for Aboriginal title on unceded traditional territories in British Columbia, parts of Ontario and Quebec, and much of the Atlantic region? How might it affect other controversial pipelines, as well as mining, fracking and logging projects opposed by First Nations?
CBC reports, “In its decision, Canada’s top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:
Continuity of habitation on the land.
Exclusivity in area.”
“The court also established what title means, including the right to the benefits associated with the land and the right to use it, enjoy it and profit from it. However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:
Economic development on land where title is established has the consent of the First Nation.
Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.”
The ruling also has implications for Indigenous Nations with treaties. The CBC article notes the ruling “will apply wherever there are outstanding land claims.” And the Toronto Star adds, “Even for treaty holders, the ruling builds on previous Supreme Court decisions that underline the Crown’s need to reconcile the concerns of aboriginal people and to take their claims seriously, said Bob Rae, chief negotiator for the Matawa First Nations Tribal Council that represents nine First Nations located around the Ring of Fire mining plays in northern Ontario.”
For further analysis on this ruling, please see the APTN report ‘Tears and cheers’ greet historic Supreme Court ruling handing Tsilhqot’in major victory, the Globe and Mail article Supreme Court expands land-title rights in unanimous ruling, and the CBC TV interview with Pam Palmater at First Nation activist on landmark land claim ruling.