Development & Aid, Headlines, Human Rights, Indigenous Rights, North America

CANADA: Landmark Ruling Backs Native Self-Determination

Am Johal

VANCOUVER, Nov 29 2007 (IPS) - In a case that took a decade to complete and cost close to 30 million dollars, a British Columbia Supreme Court judge last week gave a boost to Native Canadian bands seeking aboriginal land title, but also sent the various parties back to the table to negotiate a treaty.

Justice David Vickers issued a massive 458-page ruling, prompting some provincial politicians to quip that it was “just short of ‘War and Peace'”.

British Columbia, Canada’s western-most province, is still largely unceded territory and subject to First Nations land claims. While some bands have formally joined the government-sanctioned BC Treaty process with mixed results, other bands have stayed out of the process and have proceeded to direct litigation to pursue their claims.

Some First Nations leaders have argued that the BC Treaty Process is too restrictive and limits the rights of First Nations people to territory.

Vickers concluded that the Tsilhqot’in First Nations may have ownership rights to an area of British Columbia known as the Chilcotin region, which is approximately 2,000 square kilometres.

Justice Vickers wrote, “While I make no declaration of aboriginal title in this action, I do express an opinion as to where such title may exist…the denial or avoidance of this constitutional responsibility is unacceptable if there is to be a just reconciliation in this era of decolonisation.”

Vickers reviewed colonial history as part of his decision-making, including records from Captain George Vancouver who originally claimed the province for the British Crown in 1792, diaries of explorers, documents from fur trading companies and early Christian missionaries. Anthropologists were employed to take oral testimony of traditional myths and stories as part of the case.

In what was known as the Chilcotin War of 1864, Tsilhqot’in leaders fought with road builders and prospectors on the gold rush trail. It is referred to in the region as the last war fought on Canadian soil. The territory is viewed as never ceded by the Tsilhqot’in bands in the region.

Vickers also determined that land use decisions about such areas as forestry and mining cannot proceed without consultation and agreement from First Nations communities.

Although he dismissed a claim for compensation for the period that the land was taken from First Nations, he left the door open for compensation after the appropriate land claim could be determined.

Tony Penikett, a former deputy minister of Aboriginal Affairs in British Columbia and former premier of the Yukon, told IPS, “It is an important court decision in a couple of ways. In a very long and complicated case, the justice said that aboriginal title is much more extensive than previously thought. It extends the possibility for title in that it suggests hunting and trapping areas can be part of the jurisdiction of claims and governance – it goes further than the federal and provincial governments were willing to previously consider.”

“Even with the findings, the judge told the parties to negotiate a settlement. To a degree, it is an affirmation of the wisdom of trying to settle these claims through negotiation rather than through the courts,” Penikett said. “You have a problem in that the BC Treaty Process has been cumbersome, expensive and slow. In a sense, for those outside the treaty process, litigation will still lead to some form of negotiation even if it is outside the treaty process.”

The BC treaty process is a six-stage process, where negotiations over territory or resources do not start until Stage Four. “All the parties need to sit down and fix it to make it better. We should be opening up experimentation, so there is an incentive to settle rather than needlessly prolong negotiation,” said Penikett.

He added that the decision could help reform the existing treaty process. “Confrontation and litigation will not lead to peaceful co-existence and self-government. But there needs to be movement and reform in the current process as an incentive to be involved. That is lacking right now,” he said.

Mike Harcourt, a former BC premier who set up the modern day treaty process when the court case was originally launched in 1992, told IPS, “Negotiation, when done properly, gives the aboriginal community the opportunity to be self-sufficient and share the bounty of economic development.”

“The courts have recognised that aboriginal rights and title exist. We’ve had 15 years of valuable experience in the BC Treaty Process. Most bands have an idea of what their rights and title are. They have done GIS mapping, know their territory, know the opportunities, and know what the opportunities are when they get out of the Indian Act.”

“Instead of being vague, the courts have clearly defined that the Crown has limited jurisdiction over forestry, mining and tourism in areas where land disputes exist,” he said. “Natural resources will be applied and First Nations will benefit. Aboriginal self-government will be a fourth level of government in Canada.”

Harcourt added that through this process, a revitalisation of the treaty process is inevitable.

“First Nations should not be forced to pay legal costs,” he said. “There should be a greater focus on the end game of where we want to end up with negotiations. There is not enough resources in Stage Six, the final implementation stage. We need to work together to develop a long-term vision, a long-term community plan, economic development and governance structures. We need to be training people to run their own government.”

Harcourt added that the self-government structures in place need to meet the test of the Canadian Charter and still reconcile with traditional culture and elders in developing people who have the capacity to govern sustainably in the future.

“In the treaty process, we’ve had crash landings, hard landings and, occasionally, soft landings. We need really good health, social services and administration of justice regimes. We need to figure out how to dismantle Indian Affairs. Businesses are going to have to do joint ventures, capacity building and mentoring. Municipalities are going to have to realise that First Nations are not under their jurisdiction. We have a long way to go,” Harcourt concluded.