Court ruling challenges Victoria to move faster on native treaties

Vancouver Sun


Thursday, November 22, 2007
http://www.canada.com/vancouversun/news/editorial/story.html?id=07ec3ac5-4c95-49\
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A precedent-setting court decision handed down Wednesday could mean, among other
things, the beginning of the end of provincial jurisdiction over what is now
considered Crown land.

Justice David Vickers of the British Columbia Supreme Court ruled that the
Tsilhqot'in (Chilcotin) people have proven aboriginal title to 200,000 hectares
around Nemia Valley near Williams Lake. He didn't make a declaration of title
because of technical issues, namely that the federal and provincial governments
didn't have an opportunity to cross-examine witnesses on the drawing of
boundaries and the claimant didn't include "parts thereof . . ." in its
pleading.

But in finding that the Tsilhqot'in have proven title to half their claim
covering 438,100 hectares, Vickers has upgraded aboriginal rights from occupancy
to ownership. And if the land is aboriginal land, then it falls under federal,
not provincial jurisdiction. That would mean B.C. legislation covering mining,
forestry, water, wildlife and other areas of provincial responsibility under the
Constitution no longer apply.

Indeed, Vickers suggested British Columbia has been violating aboriginal title
in an unconstitutional and illegal manner since it joined Confederation in 1871.

The lengthy 482-page judgment has been a long time coming, with 339 days of
testimony over four years. It likely is not over yet as government lawyers are
expected to appeal.

In finding for the first time that a particular group of natives has proven
title to a specific parcel of land, the judgment is bound to raise the
expectations of other aboriginal bands with territorial claims. But before
launching a wave of litigation, aboriginal leaders should consider the
implications of taking their case to court rather than negotiating through the
treaty process. A court proceeding is by definition confrontational, where one
side wins and the other loses. A treaty negotiation aims to produce a win-win
settlement that allows all parties to celebrate their achievement.

In his decision, Vickers said that the court's role is but one step in the
process of reconciliation. It recognized the long-standing presence of
Tsilhqot'in people in the area they claimed as "a simple, straightforward
acknowledgement of a historical fact."

But the courts cannot balance the needs and interests of a modern indigenous
population with those of the broader society. "That is the challenge that lies
in the immediate future for Tsilhqot'in people, Canada and British Columbia,"
Vickers said.

Court rulings can give first nations' territorial claims legal standing, but
they can't improve the lives of native people. Others might wish to follow the
example of the Tsilhqot'in and pursue their claims in court in the hopes of
winning a similar victory. That path could force them to spend the next decade
or longer in litigation, while nothing changes on the ground.

On the same day the court decision was released, a treaty settlement between the
provincial government and the five Maa-nulth first nations on Vancouver Island
was presented to the legislature. In recognizing aboriginal title to land, the
court has sent a clear message to Victoria to shift the treaty process into high
gear or risk losing jurisdiction over the province it is supposed to govern.


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