Watch above: A landmark Supreme Court of Canada ruling is emboldening other First Nations to stake their own claims. Vassy Kapelos reports.
It’s being hailed as a game-changer, a wake-up call, and a “very extraordinary” decision for First Nations rights.
But how does the Supreme Court’s unanimous decision to recognize a B.C. First Nation’s title to a specific tract of land, affect all Canadians?
Here, let us break it down:
1. Broader scope for aboriginal land
The Supreme Court said land titles can extend beyond what is regularly used by First Nations, to include seasonal hunting, fishing and resource-rich territory. This accounts for the fact that some land is used on a seasonal basis or reflects nomadic patterns of First Nations. In any case, it significantly increases the geographic scope of potential land titles. “It’s crystal clear that across the province, there are very large pieces of land the province is going to have to deal with in a different way,” said Gordon Christie, director of the indigenous legal studies program at the University of British Columbia.
2. Consent, or back to the drawing board
First Nation consent is required for economic development on land where title is established, the court ruled. Failing that, the government has to make the case that development is pressing and substantial, and must meet its fiduciary duty to the aboriginal group. “In some instances, the consent of the First Nations will be required for projects under development, and if they’re under development already sometimes we’ll have to go back to the drawing board and get the consent of First Nations,” said David Rosenberg, lawyer for the Tsilhqot’in Nation.
Although there is more incentive for governments to get consent, it doesn’t necessarily give the community a veto at the end of the day, as long as the government meets its stringent test, said Larry Chartrand, an associate law professor at the University of Ottawa, specializing in aboriginal rights.
“There’s more cards in the hands of the aboriginal community,” Chartrand said. For its part, the government said it was reviewing the decision. “Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians,” Aboriginal Affairs Minister Bernard Valcourt said in a statement.
3. Provinces play a role
For the first time, the court made clear that provincial law still applies to land over which aboriginal title has been declared (although subject to constitutional limits.) That means that provinces also have the ability to infringe on the territory if consent or other tests are met. This surprised a lot of experts, because provinces used to be left out of the mix. “The Supreme Court of Canada basically rewrote the Constitution by allowing provinces to do that, which from my understanding of the case law prior, provinces couldn’t infringe on aboriginal rights, because of the fact that aboriginal rights were within the federal government’s jurisdiction,” Chartrand said.
4. Resource development
The court’s ruling means First Nations have a much greater say in the development. “We’re moving away from the world of mere consultation, into a world of consent. And that is absolutely enormous when one considers Enbridge’s Northern Gateway pipeline proposal, the Kinder Morgan pipeline proposal, and a whole multitude of major resource development projects,” said B.C. Grand Chief Stewart Phillip.
And according to Chartrand, bands are “quite sensitive” to need for economic development. “They want it on their terms and they want it based on the fact that they own the resources and the land,” he said. As Xeni Gwet’in Chief Roger Williams put it: “Once the first people of this country have title, then only good things going to come.”
Arguably the most-quoted term following the decision was “reconciliation.” Aboriginal groups said they were hopeful the decision would lead to a more equitable relationship with governments. Jody Wilson-Raybould, the Assembly of First Nation’s B.C. regional chief, called the decision “a wake-up call” for governments, and called on Prime Minister Stephen Harper to change his tune on negotiating with First Nations.
“We look to Mr. Harper to actually seeing this as the fundamental impetus to sit down at the table and truly and meaningfully move towards reconciliation,” she said.
“Reconciliation will be good for our nations and it will fundamentally be good for this country and transform for the better as we move forward based upon this historic day.”
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