In an historic first today, the Supreme Court of Canada ruled in favor of the Tsilhqot’in First Nation’s Aboriginal title claim to 1,750 square kilometres (1,087 square miles) of territory in interior British Columbia. The unanimous ruling sets a new legal precedent in Canada, where the Supreme Court has never granted a declaration of Aboriginal title to a First Nation until today.
The Supreme Court found that British Columbia breached its fiduciary duty to consult with the Tsilhqot’in and that it had no economic justification for issuing logging permits in the claimed territory, which sparked the over two-decade battle. The province was argued that it stood to benefit economically from logging in the claimed area and also that it needed to stop the spread of a mountain pine beetle infestation.
Aboriginal title can be loosely understood as a form of land title based on historic use and occupancy. In this ruling the Supreme Court is recognizing pre-contact Tsilhqot’in land use and occupancy as a legitimate basis for contemporary land ownership.
“The doctrine of terra nullius [that no one owned the land prior to European assertion of sovereignty] never applied in Canada,” the court states in its 8-0 ruling.
Aboriginal title is what was legally extinguished in Alaska by the 1971 Alaska Native Claims Settlement Act in exchange for a land settlement and cash. The same is true of the 1993 Nunavut Land Claims Agreement. Legally extinguishing a people’s Aboriginal title erases any future legal claim to land based on historic land use and occupancy.
The ruling will give the Tsilhqot’in and other First Nations whose Aboriginal title has not been legally extinguished important legal leverage from which to negotiate with encroaching extractive industries. This seems to have been a major impetus for the ruling.
From the Globe and Mail:
The Supreme Court elaborated in some detail on how government, resource companies and aboriginal communities with title claims could try to work things out in the new era of aboriginal title. It said government needs a compelling purpose to intrude, and its purpose must be considered from the aboriginal perspective, not just that of the wider public. Ultimately, intrusions will be judged on how they serve reconciliation between aboriginal peoples and the wider population.
At a 1969 hearing, the Iñupiaq leader Eben Hopson pointed out the absurdity of Indigenous peoples having to bear the burden of proving, to colonial regimes and courts, that we have title to our lands based on historic use and occupancy.
Mr. Chairman, when we were in Washington four months ago you asked us to answer a number of questions, one of these related to “unproven aboriginal title”. In the first instance, the words unproven aboriginal title is a misconception. There is no such a thing as unproven aboriginal title. The mere fact that you say “aboriginal” implies that someone was there before you were.
Nevertheless, it is an important day for Canada. Congratulations to our Aboriginal Canadian friends.