Chilko Lake First Nation to assume control of a large chunk of territory

Vaughn Palmer
Vancouver Sun


Wednesday, November 21, 2007
http://www.canada.com/vancouversun/news/story.html?id=9c34d13d-4cf1-4e62-ba13-7d\
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VICTORIA - The B.C. Liberals are braced today for what is expected to be the
first court decision recognizing aboriginal title -- ownership -- over a sizable
territory in the province.

The courts have earlier recognized the existence of aboriginal title over B.C.
in general terms, reflecting the historical fact that the native inhabitants
were supplanted without treaties or other legal formalities.

But no Canadian court has recognized aboriginal title on the part of a specific
group of natives over a specifically defined area of land.

Until now. Justice David Vickers of the B.C. Supreme Court is expected to do
just that in a lengthy decision scheduled for release this morning.

The case was brought by Chief Roger William of the Xeni Gwet'lin First Nation,
based in the Nemiah Valley, in the vicinity of Chilko Lake west of Williams
Lake.

He and his people claimed aboriginal title over almost 4,400 square kilometres
of land, an area half again as large as Metro Vancouver.

To prove title, natives have to demonstrate continuous and exclusive occupancy,
dating back to at least the first half of the 19th century, when the British
first asserted their version of title over the territory they called British
Columbia.

Not surprisingly, given the time span and the limitations of the historical
record, it entails a lengthy and complex legal process, involving archeological
and other scientific evidence, as well as oral history.

Just how exhaustive it was can be gleaned from the record of this
precedent-setting case: 339 days of courtroom testimony spread over four years,
44 days of it provided by Chief William alone.

All of it paid for by federal and provincial taxpayers. Early in the
proceedings, Vickers ruled that the stakes were sufficient that the two
governments were obliged to pick up the entire tab for the natives as well.

Rough estimates of the costs to date exceed $30 million.

On a best guess, the natives will secure jurisdiction, title, ownership, call it
what you will, over almost half their claimed territory, say 2,000 square
kilometres.

As it happens, that equals the amount of land included in the 1998 Nisga'a
treaty. But the Nisga'a lands in northwestern B.C. were more remote, therefore
less valuable.

Treaty talks to date have seen governments offer natives jurisdiction over about
five per cent of their traditional territory, plus cash, resources and other
forms of compensation.

The latest settlement, with the five Maa-nulth first nations on Vancouver
Island, will be presented to the legislature today and is expected to gain
speedy passage.

But if William and his people gain title to almost half of their territorial
claim, that would presumably drive up the cost of future settlements.

Apart from the escalated cost of making treaties, today's judgment could bring
bad news for the provincial government in other ways.

William also asked the court to void provincial forestry legislation as well.

His argument was constitutional: The province has no jurisdiction over
aboriginal lands, though federal legislation (including forestry legislation)
would continue to apply.

If Vickers goes along with that -- and he is expected to do so at least in part
-- it could open the way for a major jurisdictional shift in B.C.

About 95 per cent of the province is regarded as
provincial-government-controlled Crown land, including surface timber and
underlying mineral resources.

But most of those lands are subject to claims of aboriginal title. In future,
Ottawa might have more regulatory control than Victoria over what is now
regarded as provincial Crown land.

The natives also claimed damages against the province for infringing aboriginal
rights and title over the years, particularly through logging in the band's
traditional territory.

Aboriginal title. A weakening of provincial jurisdiction over land and
resources. Damages.

Vickers's specific rulings on those and considerations, spread over almost 500
pages, are scheduled for release shortly after 10 a.m. today.

The judge -- a former B.C. New Democratic Party leadership candidate who was
appointed to the court by the federal Conservatives -- may well have produced
something to earn himself a place in the history books.

But the one certainty is that, whatever he says, his decision will be challenged
by one side or the other at the B.C. Court of Appeal and then all the way to the
Supreme Court of Canada.

The courts have often voiced a hope that claims would be settled through
negotiation, rather that litigation.

But at the same time the judges have made it harder to do so, because each
precedent-setting case sends negotiations back to square one and invites more
litigation.

vpalmer@...


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