Tsilhqot'in Ruling Rocks BC; Aftershocks To Come

If a tremor shakes BC’s forestsand no one talks about it, was there an earthquake? We are going to find out whenthe shock waves of the groundbreaking decision in BC Supreme Court Tsilhqot’in titlecase begin to register on British Columbia’s economic, political and environmentalRichter scales…and in the financial markets.

Usuallynews of an earthquake captures headlines and leads the television news nomatter where it occurs in the world. If the quake is big, or close to home, weare inundated with weeks of analysis detailing how prepared the government wasand how the dealt with the aftermath. Not so with the major quake from the BCcourts last November.  When the BC SupremeCourt decided the Tsilhqot’in title case last fall, the media paid littleattention. The government remained silent, at least publicly; privatelyinsiders say government is scared that the fault lines surrounding title issuesare spreading a across BC.

Despite the low profile, the Tsilhqot’inruling has cracked the foundation of how lands are managed in BC. While thetrue magnitude of the case hasn’t been felt yet, it could trigger a series of seismicevent which force BC down the path to become global model for indigenous rightsand sustainability. It could be the most important court decision to occur inBC in our lifetimes.

So what did the court say?

“Aboriginal title, being a rightto the land, arising from original occupation and existing independent of Crownrecognition, is a collective, exclusive right to possession of the land, withdiscretion to choose how the land is used, subject to its inherent protectivelimit.  It is a right which has aninescapable economic component”
– fromTsilhqot’in decision 

Supreme Court Justice Vickers ruled that the Tsilhqot’inhad proven title to ~2,000 square kilometres in the Brittany Triangle region ofthe Cariboo-Chilcotin. He also recognized the Tsilhqot’in Aboriginal right tohunt, trap and trade animal skins and pelts over an additional 2,000 squarekilometres in surrounding lands.  This isthe first time a Canadian Courthas ruled Aboriginal title exists to a large tract of land a First Nationclaimed belonged to them.

In the short-term the courts the most explosive findingis that the provincial Forest Actdoes not apply to Aboriginal title lands at all for constitutionalreasons.  The aftershocks of this raiseuncertainties about the applicability of all resource licences and laws oncontested First Nations lands throughout BC.

After a 339 day trial the court validated thataboriginal title includes the right to use the land, to choose how land isused, and to get the benefits from resources on those lands.  To comply with this new reality all BCresource laws will have to be re-written to incorporate First Nations newpower.

The court also dramatically increased the risks ofignoring Aboriginal title and continuing with business-as-usual resourceextraction policies. Justice Vickers ruled that “[t]he resources on Aboriginal title land [2,000 square km] belong tothe Tsilhqot’in people and the unjustified removal of these resources would bea matter for appropriate compensation.”  Imagine the value of all the trees, salmon,minerals, water etc from the Brittany Triangle, and other First Nations lands,over the last 150 years.

Some punditsand government representatives have tried to diminish the magnitude of the case,pointing to the fact that for technical reasons the Court declined to grant theTsilhqot’in their requested declaration of title. The Tsilhqot’in are exploringmechanisms to correct the technical defect to get a binding ruling of title, orresolve the dispute through negotiations. However, until another case or anappeal overrides it, the government is required to comply with the groundbreakingprinciples enunciated by Justice Vickers.

Unfortunately, BC once again seems to be disregarding directions from the courts. earlier this month the Tsilhqot’in threatened further lawsuits after the BC government failed to meet a court ordered deadline for an offer in their land claims negotiations.

Huge implications

JusticeVickers’ ruling fundamentally shakes economic, political and environmentalrelations in British Columbia.Collectively his findings create major cracks in the BC government’s unilateralpower to grant licences to log, mine, drill or to set the rules for howcompany’s must operate on lands First Nations have strong interests in. Withouta significant overhaul of BC’s resource laws and policies, third partyinterests will remain especially vulnerable to shock. 

Given that nowBC does not have jurisdiction over Aboriginal title lands; resource ministriesmust now consider the probable existence of Aboriginal title when it contemplatesdecisions whic
h have the potential to impact on potential title lands.  Because ministries have historicallydisregarded these issues, logging and other resource companies may not be ableto rely upon the validity of government approvals either to log and marketlumber, or to transfer their tenures.   Practicallyspeaking, where First Nations have strong evidence of title, there is now acorresponding strong probability that the Province has no property interest orjurisdiction. 

Money talks

Government mayignore the courts, but not the financial markets. While the BC government willundoubtedly seek ways to circumvent the courts, the uncertainty created by thisruling creates new opportunities directly intervene with investors to exposethe risks of operating on unceded lands in BC. Divulging this heighteneduncertainty to key players in the financial markets should quickly compelmeaningful engagement from both government and companies. It will beinteresting to read how BC companies operating on unceded First Nations landsdisclose these new risks (as is legally required) in their annual reports thisspring. 

Recently Dogwood Initiative hassucceeded in catalyzing First Nations self determination efforts by leveragingthe uncertainties created by previous court cases. This technique has helped stopplans to fast-track coalbed methane, mines, coal-fired power plants and oilpipelines.

Dogwood Initiative, in additionto highlighting undisclosed legal risks, has begun translating informationabout the vulnerability of contested resource right to various players in thefinancial markets to encourage meaningful negotiations. The Tsilhqot’in shockwavemakes this approach even more powerful.

DogwoodInitiative is pioneering new approaches to integrate financial pressurestrategies into local self-determination campaigns. This new approach that hasthe potential to transform power relations in BC – and Canada – and develop new models fora more just, equitable, democratic and sustainable future for the developingworld.

How can title disputes be resolved?

TheTsilhqot’in decision guarantees that the treaty process, as currentlystructured, is dead. No First Nations will be willing to accept the existing termsof reference which limit title lands to only 3 to 7 percent what is claimed whenthe courts could grant them 100 percent.

For both FirstNations and the government, the best way forward would be to begin negotiatingdetails of a consent-based shared decision making process related to resourceissues, like that recently completed with the Haida. The failure to activelyseek new co-jurisdictional solutions to achieve certainty may slightly prolongstatus quo logging, mining and oil and gas operations, but in the long run willbe costly.

Ultimately theTsilhqot’in case (and others working their way through various courts) willforce BC to renegotiate new rules for making decisions about BC land andresources. Who controls approvals, who sets the rules, who gets the benefitswill all have to change to recognize the reality of aboriginal title. Herein lies the opportunity to make BC aglobal model for a more just, equitable, and sustainable future.  If First Nations use their growing power overresources forcefully – and wisely – a sustainable BC is possible.

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