Backgrounder: Tsilhqot’in Nation v. British Columbia and Canada
If you have been trying to sort out the difference between the Prosperity mine and the ongoing William vs BC rights and title case, here’s a primer on the latter.
On November 7, 2013, the Supreme Court of Canada is scheduled to hear the historic appeal of the Tsilhqot’in Nation’s Aboriginal title case.
This litigation started over two decades ago, when the Tsilhqot’in Nation blockaded and then went to court to save some of its last intact traditional lands from industrial logging. The Claim Area comprises some 438,000 hectares of remote and beautiful territory in the Chilcotin Region of British Columbia, which takes its name from the Tsilhqot’in people. It is the economic and spiritual homeland of the Xeni Gwet’in, one of six Tsilhqot’in communities.
After five years of trial, in November 2007, the BC Supreme Court held that the Tsilhqot’in people hold Aboriginal rights to hunt, trap and trade throughout the entire Claim Area, including the right to capture and use wild horses.
The BC Supreme Court went further. The Court found that the Tsilhqot’in Nation had proven Aboriginal title to approximately 40% of the Claim Area – lands that the Tsilhqot’in people exclusively controlled when the Crown asserted sovereignty in 1846, and used year after year, season after season, to sustain their communities and their culture.
Although the Supreme Court of Canada has confirmed that Aboriginal title continues as a legal right in British Columbia (in the 1997 case of Delgamuukw v. BC), this was the first time in Canadian history that Aboriginal title was recognized by a court on the ground. Aboriginal title is a right of collective ownership, which would give the Tsilhqot’in people the primary rights to decide how the lands would be used and to the economic benefit of the lands and resources.
However, in June 2012, the BC Court of Appeal overturned the BC Supreme Court’s ruling on Aboriginal title. It fully endorsed the BC Supreme Court’s ruling on Tsilhqot’in Aboriginal rights to hunt, trap and trade; however, as a matter of law, the Court of Appeal held that First Nations can never hold Aboriginal title to more than specific, intensively used sites, such as permanent villages, salt licks, or particularly effective rocks used for gaffing salmon.
First Nations across Canada denounced this judgment as making a mockery of Aboriginal title, and as a discriminatory ruling that denigrates and disregards Aboriginal ways of life, and in particular their distinctive systems of law and land use.
The sole issue before the Supreme Court of Canada on November 7, 2013 will be Aboriginal title. The outcome of this appeal can be expected to profoundly shape the future of Canada’s Aboriginal peoples. The Tsilhqot’in Nation will call on the Court to continue on the path that it has charted, to end the long era of denial and discrimination that has shadowed the nation’s past, and to provide long-overdue recognition of Aboriginal title on the ground, as the starting point for true and lasting reconciliation.
Coming soon: The Elder Bus to Ottawa – Getting 26 Tsilhqot’in elders to the nation’s capital to sit face to face with the Supreme Court of Canada judges.