Interesting Strategy ....

I highlighted the recent BC Appeals Court decision this week in the Tsilhqot’in Nation case. I am not a lawyer and I have been cautious about the full implications of this decision, but my growing belief is that this could be considered a landmark decision. "The significance of the case for aboriginal rights cannot be overstated, with Prof Kent McNeil, Osgoode Law School stating “there can be little doubt that is the most significant Aboriginal title case to be decided in Canada since Delgamuukw v. British Columbia.” (1997)" which established, in more detail than ever before, what aboriginal title means, how it can be proven, and how it can be extinguished or infringed.

I think it is worth trying to understand the decisions in this case and how they may have driven First Nations activism to make title claims across Canada. In the original BC Supreme Court decision it was held by Justice Vickers, the test from Delgamuukw was satisfied, thus Aboriginal title was proven for a portion of the claim area. However, since the test could not be satisfied for the entire claim area, the entire claim was rejected, despite the claimants’ efforts to amend their statement of claim.

The original Tsilhqot’in Nation v. British Columbia case was very important to establishing First Nations territorial claims of titles and involved over 339 days of hearings and costing an estimated $30M to date. The BC Appeals Court's unamimous decision from 3 appeals court justices, acknowledges aboriginal title (as determined in the original decision) to lands of "occupancy and intensive use of specific sites", but rejected a broader territorial claim of title.

When the case proceeds to the Supreme Court of Canada, it will represent a landmark decision regardless of what is decided. Whether the appellate court decides to recognize the first successful Aboriginal title claim (now limited intensive use areas) in Canadian history, or reject it, this case will be valuable in allowing courts to further delineate the land rights of Aboriginals. At this popint the lower court decision appears to weaken the bargaining position for Aboriginal groups in British Columbia and throughout Canada. It will be interesting to see if the larger Canadian Law firms add commentary and assess these developments in the coming days

As far as the RoF goes, the strategy to date appears to me to have been to make a territorial claim of title, as well as treaty rights in this broad area. Given the lack of clarity that now exists, agreements and settlements with First Nations may be more difficult, as they continue to press their position for larger title and rights.

Lakeside