High court ruling will have ‘astronomical’ impact

First Nations

The shíshálh (Sechelt) Nation is preparing to exercise new powers over its traditional territory on the Sunshine Coast after last week’s landmark Supreme Court of Canada ruling on Aboriginal title.

“The effects are astronomical,” Chief Calvin Craigan said Monday. “This morning I got an email that BC Timber Sales (BCTS) is already making a move, holding back timber licences because of the effects of the Tsilhqot’in case.

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“So we will be preparing ourselves … for how we will proceed.”

On June 26, in a unanimous decision, the Supreme Court granted Tsilhqot’in (Chilcotin) First Nation title to 1,750 square kilometres of Crown land located on its traditional territory about 100 km southwest of Williams Lake, outside the reserve.

The decision, Craigan said, is historic and far-reaching because it marks the first time that any court has granted a declaration of Aboriginal title, confirmed the territorial nature of Aboriginal title, and rejected the concept of terra nullius, which held that no one owned the land prior to Europeans asserting sovereignty over it.

For the Sechelt Nation, he said, the ruling gives an enormous boost to its long-standing land claim with the province.

“It definitely puts Sechelt’s case forward by about 80 per cent and naturally it’s going to hasten the process with the courts. We truly believe now that rather than go to court, they will come to their senses and just settle with Sechelt,” he said.

For resource extraction within shíshálh Nation territory, Craigan said the old rules would no longer apply.

As an example, he pointed to BCTS’s logging plans for Mount Elphinstone and a comment he made to Donna Shugar, Sunshine Coast Regional District (SCRD) director for Roberts Creek, at the Band’s celebration on the day of the court ruling.

“I told her now you don’t have to worry about Mount Elphinstone — that total interest, that total mountain is under the management of the Sechelt Band. It’s just a matter of principle.”

Resource revenue sharing will also look different after the ruling, he said.

“Now, if we give out timber licences or we give out a lease to Lehigh [Materials] here, those payments, royalties and taxes will be paid to my office. The millions and millions of dollars that B.C. collected, we still have to sit down and negotiate that.”

Under the current system, First Nations have been denied royalties for industrial activities such as non-aggregate mining.

“That’s going to change,” Craigan said. “The mining, the run-of-river hydro developments, we are now partners without negotiating. If we go into a partnership, then we’re putting up our land, whereas before we would have to put up some cash. Now we don’t. So we’re an equity partner already.”

The result will benefit everyone on the Coast, he said.

“This is going to move this community forward. Not just for the Band, but the entire community. That’s why we sat down and started talking about different views and ideas with the SCRD and with the mayor [of the District of Sechelt, John Henderson]. They’re pretty much onboard. We’ve just got to get together and formalize it and confirm it.”

At the same time, he said: “I want to send a clear message to the SCRD and the District of Sechelt. Vancouver is already meeting with the Musqueam, Burrard and Squamish and saying, ‘Yes, we agree. We’re all sitting on unceded lands.’”

The Band will work toward developing a relationship based on “co-management and sharing,” he said.

“We can co-manage. There’s so much infrastructure and so many services out there that everyone needs, and we still have to determine how we’re going to share that.”

Craigan noted the Band is 30 years ahead of some B.C. First Nations in terms of self-government and setting policies on resource development within its territory.

“We’ve always tried to educate the general public about our territory, the meaning of it and what they could expect, because we knew one day it would come down to this. We prepared ourselves developing and forming self-government.”

For major projects like Northern Gateway, he said, the court ruling will have huge implications.

“Those things like Enbridge, those things are dead. Sure, the governments are going to downplay it and try to downsize the meaning of it. But eight judges clearly stated all those rights belong to First Nations.”

In its decision, the high court reasoned that Aboriginal title was not limited to village sites, but also extends to lands that are used for hunting, fishing, trapping and other cultural purposes or practices. Aboriginal title, said the court, could be declared over territory “over which the group exercised effective control at the time of assertion of European sovereignty.”

Aboriginal title confers “the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development,” said the ruling. Ownership rights include “the right to decide how the land will be used; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”

The ruling also specified that “governments and others seeking to use the land must obtain consent of the Aboriginal title holders.” If consent is not given, government will bear the legal burden of justifying its actions by demonstrating a “compelling and substantial public interest,” while also considering the Aboriginal perspective.

Government must also show that any proposed infringement on Aboriginal title by government action is “consistent with the Crown’s fiduciary duty to the Aboriginal group,” so that incursions are not justified if they would substantially deprive future generations of the benefit of the land.

For the Tsilhqot’in Nation, the ruling came more than 20 years after its dispute began over the province issuing logging permits in the claimed territory.

“We really pay tribute to their courage and tenacity,” Craigan said.

Both the province and Ottawa had opposed the claim to title.

Following the ruling, B.C. Attorney General and Justice Minister Suzanne Anton said in a statement that the high court’s decision “provides additional certainty around processes and tests that are applied to the relationship between the province and Aboriginal peoples. We will take the time required to fully analyze it and work with First Nations, industry and all of our stakeholders as we do so.”

The federal government said it was reviewing the decision, calling the legal issues involved “complex” and “significant.”

“Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians,” Aboriginal Affairs Minister Bernard Valcourt said in a statement.

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