POLITICS

B.C. court rules against territorial land claim in case likely headed for appeal

06/27/2012 02:40 EDT | Updated 08/27/2012 05:12 EDT
VANCOUVER - The Supreme Court of Canada appears destined to once again wade into the contentious issue of aboriginal land claims after a British Columbia court rejected a First Nation's demand for title over part of its traditional territory.

The ruling, released Wednesday by the B.C. Court of Appeal, upheld an earlier judgment that granted the Tsilhqot'in First Nation sweeping rights to hunt, trap and trade in over 440,000 hectares of land in British Columbia's central Interior.

But the three-member appeal panel also agreed with a lower court that the Tsilhqot'in was not entitled to aboriginal title over the land, because the nation was claiming ownership over a broad territory, rather than identifying specific sites where its people once lived.

The case dates back to the early 1990s, when the Tsilhqot'in first began using the courts and a blockade to stop logging operations in the area, setting off a two-decade legal odyssey that has cost tens of millions of dollars.

The Appeal Court's ruling prompted the community's chief to warn the fight is not over.

"As First Nations people, we want certainty, and not granting title isn't creating that," Tsilhqot'in Chief Joe Alphonse told reporters Wednesday.

"This just sets up for another fight at the Canadian Supreme Court."

A ruling from the Supreme Court of Canada would have significant implications within B.C., which, unlike other provinces, does not have modern-day treaties with its First Nations. But a judgment from the top court could also ripple across the country, as aboriginals continue to assert claims over their traditional territories.

The Tsilhqot'in, whose territory is near Williams Lake, B.C., is made up of six aboriginal bands that together include about 3,000 people.

One of those bands, the Xeni Gwet'in, claimed aboriginal title over two areas it considered its traditional land. A forestry company attempted to secure access to those areas beginning in 1980s, eventually setting off the current court case.

In May of 1992, the Tsilhqot'in staged a blockade to prevent work on a bridge related to proposed forestry activity, which ended when then-premier Mike Harcourt promised there would be no further logging in the area without the consent of the Xeni Gwet'in.

Much of the area in dispute was turned into a provincial park in 1994, but the band and the province have been fighting over the remaining land ever since. The area at the centre of the court case represents about five per cent of what Tsilhqot'in band considers its traditional territory.

The trial, which began in November 2002 and continued for nearly five years, heard evidence that the Tsilhqot'in have been present in the area for more than 250 years.

But the trial also heard the Tsilhqot'in were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

The B.C. Supreme Court ruled in 2007 that the Tsilhqot’in did not have aboriginal title over the entire area, but the court also said the Tsilhqot’in had rights to hunt and to trade skins and pelts to support a "moderate livelihood." The court also concluded the province infringed on the First Nation's rights because forestry activity in the area would negatively affect its ability to hunt and trap.

The Tsilhqot'in, the B.C. government and Ottawa all appealed various aspects of that ruling. The Appeal Court disagreed with some of the previous judge's reasons but ultimately reached the same conclusions, dismissing all three appeals.

"Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory," Justice Harvey Groberman wrote in the unanimous decision.

"The cultural security and continuity of First Nations can be preserved by recognizing their title to particular 'definite tracts of land,' and by acknowledging that they hold other Aboriginal rights in much more extensive territories."

The Tsilhqot'in argued that requiring First Nations to identify specific pieces of land failed to recognize its people's nodamic culture, and would effectively split up its ancestral territory.

The federal departments of Justice and Aboriginal Affairs both declined to comment on the case. The Justice Department was reviewing the decision, a spokeswoman said in an email.

B.C.'s minister of aboriginal relations and reconciliation, Mary Polak, issued a written statement that said the province has changed the way it works with First Nations since the trial began in 2002, stressing negotiation over legal action.

"B.C. remains committed to negotiations, rather than litigation, as the primary means of reconciling Crown-First Nations interests and building and maintaining positive working relationships," the statement said.

The province created the B.C. Treaty Commission in 1992 to settle land claims with First Nations, but the process has been long and expensive.

Some First Nations, including the Tsilhqot'in, are not participating.

Of the 60 groups currently in the process, only two have seen their treaties signed and ratified by the provincial and federal governments: the Tsawwassen First Nation near Vancouver and the Maa-nulth First Nations, which actually includes five separate nations, each with their own treaty, on Vancouver Island.

The Tsilhqot'in have a troubled relationship with the Crown that stretches back before Confederation.

In 1864, a road-building crew was killed while attempting to construct a road through Tsilhqot'in territory.

The incident sparked what became known as the Tsilhqot’in War, which ended with the execution of several Tsilhqot'in chiefs, who were publicly hanged in what is now Quesnel, B.C.

In 2006, an Appeal Court judge suggested the current legal battle could be considered a second Tsilhqot'in War.