OldBlackDog
Well-Known Member
VICTORIA — Three decades ago Nisga’a Chief James Gosnell declared in the midst of the national constitutional debate that aboriginal people owned British Columbia “lock, stock and barrel.”
Back then he generated headlines and more than a little outrage and disbelief. Today, thanks to a judgment for the ages from the highest court in the land, we should admit that he was well on the way to being right.
For as Supreme Court of Canada Chief Justice Beverley McLachlin observed Thursday in recognizing title for the Tsilhqot’in people over a sizable chunk of the province, “from their perspective, the land has always been theirs.”
So it was, so it is and so it is destined to remain for all time.
“This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits,” wrote McLachlin in a decision joined unanimously by seven other judges.
Hers was an up-to-the-moment version of title, not one that would confine native people to the traditional uses of fishing rocks and salt licks: “Like other landowners, Aboriginal titleholders of modern times can use their land in modern ways, if that is their choice.”
But even as she looked to the future, McLachlin rooted her definition of Aboriginal title in the oldest of legal authorities, the English common law, and its equation of ownership with general occupancy of the land: “A general occupant at common law is a person asserting possession of land over which no one else has a present interest or with respect to which title is uncertain.”
The Europeans who settled this province neglected to secure clear title from the owners who were already here. Ironically, they also imported the legal system that allowed those earlier land owners to reassert their rights, albeit more than a century (and counting) later.
Note, too, that the particulars of this case go back to an award of timber cutting rights in 1983, meaning it overlaps with nine premiers and successive Social Credit, New Democrat and B.C. Liberal administrations. B.C. governments of every political stripe have been in denial about the meaning of aboriginal title for a long time.
While the specifics of the ruling only apply to the claim brought by the Tsilhqot’in, the high court provided a guide for other First Nations seeking similar recognition over their traditional territories.
The onus is on them to demonstrate that they occupied their traditional territories in sufficient fashion, continuously and exclusively. The Tsilhqot’in were able to do that in a remote valley with no overlapping claims from other First Nations. Pointedly, they also excluded private property from their claim.
Not all of the province’s 200 recognized First Nations may be able to meet the test in like fashion. But one can expect that many will, with significant consequences for the province and its economy.
There was some concern that the high court might write the province out of the picture because land reserved for First Nations is federal jurisdiction. But McLachlin preserved the provincial jurisdiction over management of resources, albeit in stunted fashion where it would run up against aboriginal title.
Valid: “Legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires.” Not valid: “The issuance of timber licences on Aboriginal title land for a direct transfer of Aboriginal property rights to a third party.”
The latter may have every forest company and other holders of timber cutting rights wondering if they’ll soon be negotiating with a new landlord.
The judgment did indicate that the federal and provincial governments could encroach on aboriginal land for projects in the broader public interest. Examples cited: “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign (meaning non-native) populations to support those aims.”
Even then, governments would have to consult extensively, minimize infringement, compensate adequately, and be prepared to prove they have met those standards in court.
Thus the provincial authority over land and resources is substantially diminished and First Nations would appear to have secured a near veto over development within their traditional territories.
Welcome to the new B.C., where the rule of law now incorporates a delicate balance between European and aboriginal concepts of rights and title. Still it is recognizably the rule of law.
Thinking back to the comment at the outset of this column, Chief Gosnell has long since gone to meet his maker and his Nisga’a people have since made a treaty. Before he died in 1988, Chief Gosnell had this to say about the meaning of his words.
“When I said we owned the place, lock, stock and barrel, nobody asked me, ‘Jimmy, what do you mean by that?’ he told journalist author Terry Glavin. “Well it’s the beginning point of negotiations. That’s what it is. We own the whole thing. You want my land? Let’s negotiate.”
Then it was an invitation, perhaps even a dare. In the new British Columbia defined by the Supreme Court of Canada, there’s no longer any choice. Lets get on with it.
vpalmer@vancouversun.com
Follow me: @VaughnPalmer
© Copyright (c) The Vancouver Sun
Back then he generated headlines and more than a little outrage and disbelief. Today, thanks to a judgment for the ages from the highest court in the land, we should admit that he was well on the way to being right.
For as Supreme Court of Canada Chief Justice Beverley McLachlin observed Thursday in recognizing title for the Tsilhqot’in people over a sizable chunk of the province, “from their perspective, the land has always been theirs.”
So it was, so it is and so it is destined to remain for all time.
“This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits,” wrote McLachlin in a decision joined unanimously by seven other judges.
Hers was an up-to-the-moment version of title, not one that would confine native people to the traditional uses of fishing rocks and salt licks: “Like other landowners, Aboriginal titleholders of modern times can use their land in modern ways, if that is their choice.”
But even as she looked to the future, McLachlin rooted her definition of Aboriginal title in the oldest of legal authorities, the English common law, and its equation of ownership with general occupancy of the land: “A general occupant at common law is a person asserting possession of land over which no one else has a present interest or with respect to which title is uncertain.”
The Europeans who settled this province neglected to secure clear title from the owners who were already here. Ironically, they also imported the legal system that allowed those earlier land owners to reassert their rights, albeit more than a century (and counting) later.
Note, too, that the particulars of this case go back to an award of timber cutting rights in 1983, meaning it overlaps with nine premiers and successive Social Credit, New Democrat and B.C. Liberal administrations. B.C. governments of every political stripe have been in denial about the meaning of aboriginal title for a long time.
While the specifics of the ruling only apply to the claim brought by the Tsilhqot’in, the high court provided a guide for other First Nations seeking similar recognition over their traditional territories.
The onus is on them to demonstrate that they occupied their traditional territories in sufficient fashion, continuously and exclusively. The Tsilhqot’in were able to do that in a remote valley with no overlapping claims from other First Nations. Pointedly, they also excluded private property from their claim.
Not all of the province’s 200 recognized First Nations may be able to meet the test in like fashion. But one can expect that many will, with significant consequences for the province and its economy.
There was some concern that the high court might write the province out of the picture because land reserved for First Nations is federal jurisdiction. But McLachlin preserved the provincial jurisdiction over management of resources, albeit in stunted fashion where it would run up against aboriginal title.
Valid: “Legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires.” Not valid: “The issuance of timber licences on Aboriginal title land for a direct transfer of Aboriginal property rights to a third party.”
The latter may have every forest company and other holders of timber cutting rights wondering if they’ll soon be negotiating with a new landlord.
The judgment did indicate that the federal and provincial governments could encroach on aboriginal land for projects in the broader public interest. Examples cited: “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign (meaning non-native) populations to support those aims.”
Even then, governments would have to consult extensively, minimize infringement, compensate adequately, and be prepared to prove they have met those standards in court.
Thus the provincial authority over land and resources is substantially diminished and First Nations would appear to have secured a near veto over development within their traditional territories.
Welcome to the new B.C., where the rule of law now incorporates a delicate balance between European and aboriginal concepts of rights and title. Still it is recognizably the rule of law.
Thinking back to the comment at the outset of this column, Chief Gosnell has long since gone to meet his maker and his Nisga’a people have since made a treaty. Before he died in 1988, Chief Gosnell had this to say about the meaning of his words.
“When I said we owned the place, lock, stock and barrel, nobody asked me, ‘Jimmy, what do you mean by that?’ he told journalist author Terry Glavin. “Well it’s the beginning point of negotiations. That’s what it is. We own the whole thing. You want my land? Let’s negotiate.”
Then it was an invitation, perhaps even a dare. In the new British Columbia defined by the Supreme Court of Canada, there’s no longer any choice. Lets get on with it.
vpalmer@vancouversun.com
Follow me: @VaughnPalmer
© Copyright (c) The Vancouver Sun
