Sunday, November 25, 2007

Another story on the case

A complicated victory
After 339 days in court, the landmark ruling was finally reached this week. In a non-binding decision, the judge determined that the Xeni Gwet'in people had established aboriginal title to a large portion of their territory - but not all of the land they were claiming. Now it's up to the province and the band to negotiate.

November 24, 2007

VICTORIA -- Chief Roger William, wearing his trademark black Stetson, sat across from Premier Gordon Campbell in the Premier's legislature office Thursday morning. Both men were accompanied by a handful of advisers who cordially shook hands and admired the Premier's new native paddle.

The formalities completed, Mr. William made an offer, and issued an ultimatum.

The offer was an invitation to go horseback riding in the remote Nemiah Valley in B.C.'s central Interior. Despite assurances that he'd be well looked-after - Mr. William is a skilled cowboy - Mr. Campbell's response was non-committal.

The ultimatum was to resolve his people's aboriginal land claim through talks, or meet again in court.

To this, the Premier exhibited similar caution. Like everyone else connected to treaty negotiations in Canada, Mr. Campbell is still digesting where the parties stand after a historic, albeit opaque, land-claims decision by the B.C. Supreme Court.

The ink was barely dry on Mr. Justice David Vickers's 473-page decision when the Premier sought the meeting with the chief. On Wednesday, Judge Vickers handed Mr. William and the Xeni Gwet'in people a significant victory, declaring they had established aboriginal title to a large portion of their traditional territory.

It's a landmark finding, but the judge attached an unusual and important caveat to his decision.

"The Court offers the opinion that Tsilhqot'in Aboriginal title does exist inside and outside the Claim Area," he wrote.

And the judge concluded that title exists, not in the postage stamp-sized areas suggested by the Crown, but in wide swaths of territory where the provincial government would lose control over the resources that are still critical to B.C.'s economy.

But that opinion is non-binding. Judge Vickers urged the parties to negotiate a settlement: "Trials in a courtroom have the inevitable downside of producing winners and losers. My hope is that this judgment will shine new light on the path of reconciliation that lies ahead."

This after a 339-day trial that cost taxpayers tens of millions of dollars.

Mr. William promptly fired off letters to the Premier and to Prime Minister Stephen Harper, asking them to accept the judge's opinion. In his meeting with the Premier, he suggested a truce, to last four months, when none of the parties will file an appeal. In that time, he hopes that a settlement can be reached out of court.

Mr. Campbell made no promises but signalled his willingness to talk.


On May 13, 1992, Mr. Campbell's predecessor, Mike Harcourt, tried to head off the land-use conflict with talks. At that time, the Xeni Gwet'in were blockading a logging bridge and Mr. Harcourt travelled to the central Interior to meet with the band.

His efforts were unsuccessful, but even today he is angry that the dispute ended up in court.

"It drives me nuts, all this money being squandered on lawyers to get the same thing," he said in an interview this week. "The court keeps saying, 'Yeah, yeah, yeah, aboriginal rights and title exist, now go negotiate.' "

Mr. Harcourt, who has since served on the B.C. Treaty Commission, doesn't see the Vickers decision as an invitation to native groups to stampede to the courts. But he said changes must be made by all sides to encourage settlements at the treaty table.

Grand Chief Ed John of the First Nations Summit is also frustrated with the costly court system. But he said the current treaty process, which has garnered so few successes, is not the solution either.

"They should cut through all of this bullshit. The solution is simple. Government should introduce legislation that recognizes aboriginal title. We were here - why drag our elders through the courts to prove who we are and what we did?"

Even leaving aside the question of title, the Vickers decision has significant implications for British Columbia. It accepted that the band has aboriginal rights in its traditional territories, rights that cannot be trampled with resource extraction.

At its heart, the William case was an environmental one. The dispute began when the province approved commercial logging in the forests where the Xeni Gwet'in traditionally hunted and trapped.

Elders like William Setah, who died before the case was even heard, warned that logging would ruin their traditional ways. A trapper since he was 12, Mr. Setah gave his affidavit nearly 20 years ago, when the case began.

"If an area of the trap line was clear-cut logged, it would be useless for trapping lynx, because the lynx would not go there," Mr. Setah explained.

Judge Vickers concurred.

"Land use planning and forestry activities have unjustifiably infringed Tsilhqot'in Aboriginal title and Tsilhqot'in Aboriginal rights," he concluded.

Aboriginal title land - and, using his standard, that could add up to a large portion of B.C. - is therefore not governed by the province's forestry laws.

"The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government," he wrote.


Although the case focuses on the rights of a small native band in a remote section of the province, the William case is expected to have repercussions for land claims in B.C.

To date, a tiny minority of native groups in the province have settled their land claims. Two treaties have been signed under the current B.C. treaty process, the Tsawwassen and the Maa-nulth. Dozens more are still engaged in treaty talks.

Other groups, such as the Hupacasath in Port Alberni and the Musqueam in Vancouver, work directly with governments to secure economic deals, often with prodding through litigation.

And then there are bands like the Xeni Gwet'in, fighting for title rights in court.

It's not immediately clear, given the uncertainty hanging over the William decision, which path will reap the greatest rewards for native groups.

Mr. William spent 17 years as chief fighting this case. Standing outside the Premier's office on Thursday, clad in his leather jacket and cowboy boots, he appeared satisfied with the result.

"We own this land and we are going to act as if we own it," he said. No logging, no mining, without permission from the band.

Judge Vickers found the Xeni Gwet'in proved aboriginal title to roughly 200,000 hectares of land. But the initial claim was framed as an all-or-nothing proposition, and the judge said he could not therefore formally hand over the lands.

To Mr. William, that is nothing more than a technicality to be swept aside. "We have proven title. What are you going to do, government, to work with us from here?"

Mike de Jong, B.C.'s Aboriginal Affairs Minister, was at the meeting in the Premier's office. Not surprisingly, he doesn't accept Mr. William's interpretation.

"This concept of a non-binding opinion and what impact it will have remains to be seen," he said in a later interview.

The province is willing to reconsider its treaty-negotiating mandate in light of the ruling, Mr. de Jong said, but maintained the Xeni Gwet'in won nothing in court. "What did they get? Sorry - they got an opinion."

Lawyer Jack Woodward believes the ruling is far more than that. Hired to represent the Xeni Gwet'in at the outset of the logging conflict, he recalled taking Mr. Setah's affidavit, through a Tsilhqot'in interpreter, while the pair sat on a tree stump in the Nemiah Valley in the fall of 1989.

"He knew and I knew that you can't trap in areas that were clear-cut, but nobody had ever tried to prove that before. The case started as an environmental concern and the sleeper in this judgment is, it's an astonishing environmental decision."

The province certainly won't concede his view at this point, but it's clear Judge Vickers has posed a challenge to the province. If provincial forestry law cannot obstruct native rights to hunt and fish, Mr. Woodward argued, it means environmental values will take on far more importance in B.C.'s forests.

"This is the decision that might save the boreal forest," he said. "It's fabulous for the Tsilhqot'in people but it's even more fabulous for the environment.

Cases that paved the way

The Supreme Court of Canada first acknowledged the existence of aboriginal title as a concept in Canadian common law in 1973 in a landmark decision known as the Calder case, which arose from the Nisga'a claim to traditional lands.

But until now, no court has applied title to a specific parcel of land.

Here are some of the key court rulings since then that paved the way to this week's B.C. Supreme Court decision in the William case.


In this case, the Quebec Superior Court ruled in favour the James Bay Crees' bid to stop a hydroelectric project they said would flood their traditional lands. The court accepted that the Crees had occupied and used the land. The Quebec Court of Appeal reversed the decision in 1974, but the conflict led to a negotiated treaty.DELGAMUUKW, 1997

The key springboard for the William case is the 1997 Delgamuukw decision. In that case, the Gitxsan and Wet'suwet'en claimed traditional territory in B.C., arguing that their aboriginal rights and title had not been extinguished. The court defined aboriginal title in the Delgamuukw case as "the right to exclusive use and occupation of land." It also established that aboriginal title is a right protected under the Constitution and that title lands must not be used in a way that is irreconcilable with the nature of the group's attachment to the land.


In the Marshall decision, the courts gave aboriginals access to the commercial fishery in Atlantic Canada.


In seeking to extend the rights laid out in the 1999 Marshall case to logging, aboriginal groups were dealt a setback in the 2005 Bernard and Marshall cases. Those cases involved two members of the Mi'kmaq First Nation charged with illegally harvesting timber on Crown land. The Supreme Court of Canada unanimously found against the Mi'kmaq in New Brunswick and Nova Scotia, and established a legal test for establishing aboriginal title. The Crown relied heavily on these cases in fighting the William case.

Justine Hunter

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