‘Xeni decision’ casts doubt on provincial authority over First Nations land dealings.
Published: February 12, 2008
TheTyee.ca
The inspirational words in the judgment of Justice Vickers of the Supreme Court of British Columbia in Tsilhqot’in Nation v. British Columbia ("Xeni decision") ought to convince both Prime Minister Harper and Premier Campbell of the existence of Aboriginal peoples, and to recognize and respect the Aboriginal rights and title of each.
After 339 days of trial, this judgment should become instrumental in achieving the reconciliation that is demanded in Supreme Court of Canada cases dealing with section 35 of the Constitution Act, 1982. Or the judgment can be used as a means to prolong the fight over the land question in British Columbia.
This year, as British Columbia celebrates the 150th anniversary of its historical founding as a colony of the British Empire will it do so by continuing to deny and marginalize our rights or by properly recognizing our rights and implementing appropriate accommodation arrangements with us?
Aboriginal title land is not ‘Crown land’
Perhaps the most significant aspect of the Xeni decision is that Justice Vickers affirmed that the sole legal authority of the Crown to deal with Aboriginal title lands is the federal government. Furthermore, he declared that "Aboriginal title land is not ‘Crown land’" within the meaning of the provincial Forest Act, thus its provisions do not apply to those lands.
Further, as a result of finding that the provincial government’s land use planning and forestry activities have "unjustifiably infringed" upon their Aboriginal title and rights, he affirmed that the provincial government must now act in accordance with this legal reality and recognize, respect, and duly accommodate the rights of the Tsilhqot’in people.
The Crown did not stand up
At the outset of the trial, Justice Vickers revealed that he had asked Crown counsel whether anyone on its side "would soon be standing up to admit that the Tsilhqot’in people had been in the claim area for over 200 years." As he rightly understood that the "real question" at the heart of the case concerned the "consequences that would flow from such an admission." But the Crown lawyers instead assured him that it was "necessary to continue with the course" the trial was set on. This denial by both Canada and B.C. subsequently forced the Tsilhqot’in into five long years of litigation at considerable human and financial cost all around.
While unable to issue a declaration on technical grounds, Justice Vickers was nevertheless convinced by the evidence that Tsilhqot’in Aboriginal title "does exist" to approximately half of its claim area, and to certain additional lands outside of it.
He did however declare that the Tsilhqot’in Nation have inherent Aboriginal rights throughout their entire land claim, which includes the right to trade in skins and pelts as a means of securing a moderate livelihood, and the right to hunt and trap birds and animals for various purposes.
In recognizing the Aboriginal title and rights of the Tsilhqot’in Nation, Justice Vickers has effectively quashed the legal strategy of the provincial and federal governments to deny the very existence of our peoples and our inherent Aboriginal title and rights.
He was particularly scathing of their argument that Tsilhqot’in Aboriginal title should be limited to small "postage stamp" parcels of land, to small sites where specific activities or practices took place. He found this to be an "impoverished view" of Aboriginal title — "A tract of land is not just a hunting blind or a favourite fishing hole .. . [these sites are] but a part of the land that has provided ‘cultural security and continuity’ to Tsilhqot’in people for better than two centuries."
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http://thetyee.ca/Views/2008/02/12/NativeClaims/
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