Land-claims decision could rock treaty process
November 5, 2007
VICTORIA -- Aboriginal leaders and government treaty-makers are bracing for a potential milestone land-claims decision expected as early as today from the B.C. Supreme Court.
The William case, launched 17 years ago, centres on claims from a small native band in an inaccessible area of the Cariboo Chilcotin, sparked by a dispute with the provincial government over logging.
But it could create a significant shakeup in treaty negotiations if it succeeds in establishing aboriginal title to a specific parcel of land.
It comes at a time when the treaty process is becoming more volatile, as a large number of aboriginal groups push back against recent progress.
"Some people are counting the sleeps until the ruling," said one top negotiator.
While there have been dozens of court rulings establishing aboriginal rights and title, there is a widespread expectation that this case, before the progressively minded Justice David Vickers, could take things a step further.
"There is very little doubt Justice Vickers will find aboriginal title, but how big an area? That will be the key, it will send a signal to other First Nations about what they can expect," said another senior treaty official.
And more important, if they can expect to win more through litigation than what has been achieved in the two recent treaties won in B.C. by the Tsawwassen and the Maa-nulth nations.
Ten years ago, the Supreme Court of Canada defined aboriginal title in the Delgamuukw decision as "the right to exclusive use and occupation of land." But until now, the courts have generally steered the players back to the negotiating table to work out the specific details.
Launched by Roger William, chief of the Xeni Gwet'in First Nation, the case has been fought before Justice Vickers for more than four years and has likely cost taxpayers tens of millions of dollars since the courts ordered the provincial and federal governments to pick up the tab.
In the suit, the Xeni Gwet'in claim ownership of the Nemiah Valley, almost 440,000 hectares of wilderness southwest of Williams Lake, accessible by a gravel logging road.
While a broad acceptance of their claim would itself have minimal impact outside the sparsely populated region, the precedent could have huge implications for the vast majority of B.C. aboriginal bands that have yet to settle land claims.
The Tsawwassen and Maa-nulth are the first aboriginal governments to negotiate treaties in more than a decade and while those deals have been hailed as a much-needed success for the B.C. treaty process, there is increasingly vocal dissent from other aboriginal groups about the contents of the settlements.
Late last month, federal Indian Affairs Minister Chuck Strahl and his provincial counterpart Mike de Jong met in a Vancouver hotel with representatives of the First Nations Leadership Council, which represents the major native groups in B.C.
The closed-door meeting was called in part to address concerns that the two treaties were settled without formal recognition of aboriginal rights and title, because neither B.C. nor Canada accept the terms in their negotiating mandates.
"I'd write it in blood if it would help people understand what we are up against," said Grand Chief Ed John, head of the First Nations Summit, in an interview after that meeting. Mr. John said both governments must issue fresh instructions to their negotiators to discuss aboriginal title.
However, Mr. John also agreed that aboriginal groups are offering mixed messages about what they want. Later this month, the leadership council has called an in-camera session, expected to last four days, with the province's top aboriginal leaders. A key objective, he said, is to try to establish a unified vision for treaty negotiations to bring back to the table in December, the next time the leadership council sits down with Mr. de Jong and Mr. Strahl.
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