Williams Ruling – Native Legal Win # 166
Last week’s headlines proclaimed: “B.C. Court Rules Tsilhqot’in First Nation has no claim to territorial land”. Their claim for broad-based aboriginal title was defeated.
So why am I calling this a native win?
Based on their semi-nomadic historical footprint exercised throughout their traditional lands, the Court of Appeal ruled that this set of facts did not entitle natives to a broad area-wide declaration of aboriginal title. However they were invited to reframe their petition for certain site-specific locations that the court clearly telegraphed could well portend localized aboriginal title declarations.
The court of appeal’s application and extent of aboriginal title in this case is now headed to the Supreme Court of Canada for its review and reconsideration. The issue becomes the broader area wide determinations of aboriginal title that the natives were hoping for – versus – the ‘postage stamp’ localized areas scattered throughout their traditional lands. Yet at the end of the day, aboriginal title will almost certainly apply in some fashion within their territories; just to what extent will depend on the Supreme Court of Canada ruling in two to three years time.
However in all other respects the initial (Justice Vicker’s) ruling was upheld. It’s that ruling that remains the safety net for identifying and substantiating those localized aboriginal title sites. The reason this ruling is a significant win for natives is that on the aboriginal rights front – they won on every count ‘hands down’ on all counts.
They have an aboriginal right to wrangle wild horses (upheld); an aboriginal right to hunt and trap (upheld); an aboriginal right to trade in skins and pelts in order to realize a ‘moderate livelihood’ (upheld), a declaration that these same rights have been infringed by the ‘totality of forest management’ practices (upheld); which infringement has never been properly justified by the crown (upheld).
When these aboriginal rights declarations are added to the notional aboriginal title sites (albeit yet to be determined) it’s clear that the Tsilhqot’in left court with a very respectable legal win – one that portends significant resource rights and protections throughout their traditional lands.