Canada sees landmark ruling on Aboriginals, land
Vancouver, B.C. • A landmark Supreme Court of Canada ruling that Aboriginals can stake a broad claim to traditional territories could have a significant impact on future development of resources, energy projects and pipelines, including a plan to move crude oil to the Pacific coast for shipment to Asia.
The high court ruling recognized, for the first time in Canada, Aboriginal title to a specific tract of land. The case involved a claim to 676 square miles of land in central British Columbia. The court ruled that the Tsilhqot’in Nation is entitled to prevent forestry on the tract.
The unanimous decision Thursday ended a 25-year legal battle and set a historic precedent affecting resource rights.
The high court’s decision overturns an earlier B.C. Appeal Court ruling, making it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities prior to contact with Europeans. Chief Justice of Canada Beverley McLachlin’s ruling means that governments and others seeking to use the land under title must obtain the consent of the Aboriginal title holders.
If the government begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project if title is established and if continuing the project would unjustifiably infringe on Aboriginal rights, the court said in its 8-0 decision.
The Supreme Court said governments could allow some resource projects to go ahead, even if they infringe on Aboriginal title, in cases where there is "a compelling and substantial public interest."
Tsilhqot’in Chief Joe Alphonse said the decision will bring much-needed certainty for First Nations, government and industry, adding that the ruling is about Aboriginal communities being able to govern the land and the natural resources they rely on. The Tsilhqot’in nation has a population of about 3,000.
The case dates back decades to a dispute over logging rights granted where Tsilhqot’in maintained traplines.
Across most of Canada, indigenous people signed land treaties with the government decades ago that gave up their claim to land in exchange for land reserves and other promises. But for the most part, that didn’t happen in British Columbia and in parts of Quebec and the East Coast. There are hundreds of indigenous groups across British Columbia with unresolved land claims.
University of British Columbia Aboriginal law specialist Gordon Christie said Friday that the ruling would have significant implications for resource development.
The ruling could complicate approvals for resource projects such as Enbridge Inc.’s Northern Gateway pipeline proposal to move Alberta crude oil to the B.C. coast for shipment to Asia. The pipeline would cross territory claimed by Aboriginal groups. The Canadian government on June 17 conditionally approved the Northern Gateway pipeline proposal.
Christie said the Supreme Court ruling could lead to Aboriginal groups living along the Northern Gateway project’s pipeline route to file for title.
"As of yesterday, the couple dozen First Nations along the route can say to themselves, ‘this looks pretty promising,’ and they can go and get a declaration of title, and I assume quite a few are thinking of doing that right now," Christie said.
Terry-Lynn Williams-Davidson, the Haida First Nation’s general counsel, told an Ottawa news conference earlier this week that if the Haida tribe is successful in its [land] claim in an area along the pipeline’s route, then the project approvals would have to be rescinded and the project would be halted.