Some B.C. First Nations hail court case while others celebrate treaty
Thu Nov 22, 1:18 AM

By Scott Sutherland, The Canadian Press
http://ca.news.yahoo.com/s/capress/071122/national/aboriginal_title_decision

VICTORIA - The dividing line between B.C. aboriginal groups on how to fight for
their historic rights couldn't have been more clearly defined than by two events
Wednesday.

Six First Nations from the central B.C. Interior hailed the end of a 17-year
legal fight as a victory for aboriginal rights, title and control of native
territory. Meanwhile, leaders of five Vancouver Island First Nations stubbornly
defended their decision to sign a treaty rather than continue their battles
through the courts.


"We're very happy that we've chosen this path," said Huu-ay-aht Chief Robert
Dennis, one of five Maa-nulth chiefs taking part in a treaty ceremony at the
legislature.


"There's a court decision out there and that's the route that First Nation has
taken," said Dennis, referring to a massive B.C. Supreme Court decision covering
claims by the Tsilhqot'in bands in the province's Cariboo-Chilcotin region.


"We've take the path of negotiating a treaty and we're happy and absolutely
nothing will put a damper on that," said Dennis.


The 485-page decision by Justice David Vickers ruled aboriginal title does exist
inside and outside a large area claimed by the Tsilhqot'in.


Tsilhqot'in Chief Roger William, holding an animal-skin drum, said his people
have always considered the land in question as their own and he believes the
court ruling upholds that belief.


"Nothing is going to happen in this area without our approval," he told
reporters in the Tsilhqot'in's lawyer's office.


An ancient mistrust lay at the heart of the decision to go to court, said Joe
Alphonse, the band's director of government services.


In the 1860s, six Chilcotin chiefs were hanged in Quesnel, B.C., after being
invited to peace talks.


"We've been at the treaty table. It cost us dearly," he said. "It cost us six
war chiefs in 1864."


The court ruling was released about an hour before hundreds of members of the
Maa-nulth paraded to the legislature for a ceremony marking the introduction of
legislation to ratify their treaty, the second one completed under the B.C.
treaty process started in the early 1990s.


"This is a milestone in reconciliation, recognition and accommodation," B.C.
Premier Gordon Campbell told members of the Ucluelet, Toquaht, Uchucklesaht,
Kyuquot and Huu-ay-aht First Nations.


It's a deal that will see the five bands' 2,000 members share $73.1 million,
annual resource royalty payments averaging $1.2 million for 25 years and a land
transfer of approximately 245 square kilometres.


Five chiefs were invited to address the house from the door of the chamber
minutes after the bill was tabled.


Uchucklesaht Chief Charlie Cootes told the MLAs the treaty, the result of
negotiation that began in 1994, will free his people from the historic burden of
bureaucracy and reclaim their historic right to govern themselves.


But the ceremony and speeches stood in some contrast to the court ruling.

The Tsilhqot'in bands' trial started in November 2002, took 339 days to complete
and looked back at 200 years of native history.

It cost the federal and provincial governments almost $30 million in legal costs
after the judge ruled they must also pay the First Nations' legal fees.

"The province has no jurisdiction to extinguish aboriginal title," Vickers
wrote.

He ruled the group has the right to hunt and trap birds and animals throughout
the 2,000-square-kilometre claim area and that the Tsilhqot'in can capture and
use wild horses for transportation and work.

"These rights have been continuous since pre-contact time which the court
determines was 1793," Vickers wrote.

Jack Woodward, a lawyer for the Tsilhqot'in, said the decision on aboriginal
rights is unprecedented.

"It gives an outstanding amount of power to the First Nation to control their
own territory," he said.

The ruling is a "very clear road not only for Chilcotin people but other
aboriginal people," Woodward said.

The government played down Vickers' ruling, which will likely be appealed,
saying it is not binding and should instead be seen as a basis for negotiating
land use and other aboriginal rights.

Campbell said the Maa-nulth treaty and the Tsawwassen deal ratified earlier this
month by the legislature are about self-determination and putting people in
charge of their own destiny.

"Clearly with the (Tsilhqot'in) decision, I think it's a 400-page document that
says we should negotiate," Campbell said at a news conference after tabling the
Maa-nulth treaty legislation.

"(It) is a pretty strong message about negotiation and we see the results of
that here today.

"It's pretty clear from that judgment that negotiation is the route to a future
that's full of hope for First Nations people across the province."

Dennis said the Maa-nulth had collectively looked at the litigation route and
decided against it.

"Millions and millions of dollars to go to court, probably appeal after appeal
after appeal," he said, adding that was when they turned to the treaty process.

"We looked at the opportunities it brought. It brought us more revenue, it
brought us more governance, it brought us more land and it brought us an
allocation to more resources."

Campbell noted the Tsilhqot'in's court fight cost $29 million "and frankly
doesn't resolve very much.

"This (the treaty) is something that resolves things, moves them forward and
gives First Nations an opportunity to chose for themselves."

Campbell said he is confident the B.C. legislature will quickly ratify the
treaty and it will move on to the House of Commons for a final vote in the near
future.

The Tsilhqot'in's lawyer said the court instructed the B.C. government to manage
the territory to preserve the resources necessary for the natives to exercise
their rights.

"The court found that clearcut logging harms (native hunting), and the province
cannot carry on with plans to clearcut log because that would unjustifiably
infringe on that right," said Woodward.

The judge wrote that British Columbia's forestry activities in the area infringe
on the Tsilhqot'in title.

"A legislative scheme that manages solely for timber ... faces a formidable
challenge when called upon to balance aboriginal rights with economic interests
of the larger society." Vickers ruled.

The judgment was praised by other aboriginal groups in the B.C. interior. The
hereditary chiefs of the Wet'suwet'en Nation offered congratulations for what
they see as a massive victory in the courts for all First Nations.

Hereditary chief Kloum Kuhn also called it an important addition to the
precedent set by the 1997 Delgamuukw decision, which he said confirmed the
Wet'suwet'en's traditional rights to their territory and established a
three-part test for proving aboriginal title.

Wednesday's decision was the first time that test for title had been
successfully applied, he said.


[Non-text portions of this message have been removed]