Two land claims take two very different paths
Negotiations led to the Maa-nulth Treaty, while a court is set to decide who
owns the Nemiah Valley. Is one way superior to the other?
JUSTINE HUNTER

November 21, 2007

http://www.theglobeandmail.com/servlet/story/LAC.20071121.BCTREATY21/TPStory/TPN\
ational/BritishColumbia/

VICTORIA -- A landmark court ruling on land claims is expected today to give a
small band in B.C.'s central Interior substantial powers to manage a large tract
of their traditional lands, while sending reverberations throughout Canada's
treaty process.

On a day when the B.C. government had hoped to bask in a celebration as the
recently negotiated Maa-nulth Treaty is tabled in the legislature this
afternoon, Mr. Justice David Vickers of B.C. Supreme Court is set to release his
473-page judgment on an aboriginal title case filed by Chief Roger William and
the Xeni Gwet'in First Nation.

Both events, taking place just a few city blocks apart, are the result of two
very different paths toward settling aboriginal land claims.

In court, Judge Vickers spent 339 days hearing arguments about who owns the
Nemiah Valley. His decision is expected to refer some issues back to the parties
for negotiation, and almost certainly will be appealed to a higher court, but it
will be the first time a Canadian court has ruled in favour of aboriginal title.

The Xeni Gwet'in claimed roughly 440,000 hectares as their traditional territory
in a lawsuit that started as a battle against large-scale commercial logging. It
is expected Judge Vickers will find the band established exclusive and
continuous occupation - the current legal test of title - to nearly half of that
parcel of land.

That's far more than the Crown has been willing to put on the table in
negotiations. Modern treaties in British Columbia have averaged about 5 per cent
of the traditional territories claimed, although they also include cash
compensation.

Both the federal and provincial governments opposed the band's broad claims but
made unprecedented concessions. The Crown accepted the band's claims to
aboriginal rights to hunt and fish in the valley, and conceded title in a very
limited way.

"This is an absolutely critical decision and it may have significant
ramifications for treaty negotiations," Shawn Atleo, B.C. Chief of the Assembly
of First Nations, said in an interview yesterday.

Chief Judith Sayers of the B.C. First Nations Summit said aboriginal leaders
will be watching closely to see whether they can win more through the courts
than through negotiation.

"That's what the contrast will be: We certainly hope for a good result in the
court case," she said. A strong ruling for the Xeni Gwet'in will help push the
federal and provincial governments to make treaty negotiations more attractive,
she predicted. "And that will help the treaty process."

The ruling is unlikely to be a clear victory for the band, but is expected to
grant it substantial influence over how the land is managed, with very clear
rights to be accommodated in government decisions.

While Mr. William and band elders gather in their lawyers' offices to be briefed
this morning, a procession representing five aboriginal groups from Vancouver
Island will head toward the legislature, where the proposed Maa-nulth Treaty
will be introduced.

The court ruling would have no impact on the Maa-nulth settlement, but Chief
Robert Dennis of the Huu-ay-aht First Nation, the first of the five bands to
ratify the deal, said he has no regrets.

"My thinking is, with negotiations you get to help shape where you would be,
rather than let a judge decide. There's a role of the dice that happens when you
go to court."

Mike de Jong, B.C.'s Minister of Aboriginal Affairs, agreed.

"It's an interesting convergence, the successful product of a lengthy
negotiation and the product of a lengthy judicial process," he said.

"I still believe there are significant advantages to negotiated settlements
because the parties have greater control than with a decision that comes down
from the bench."


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