[BCFSN] Fwd: Commentary on the Tislqot'in decision from MiningWatch

Tue Jul 8 10:31:06 EDT 2014

-------- Original Message --------
Subject: 	Posts from MiningWatch for 07/08/2014
Date: 	Tue, 8 Jul 2014 08:01:12 +0000
From: 	MiningWatch Canada <info at miningwatch.ca>
Reply-To: 	MiningWatch Canada <info at miningwatch.ca>
To: 	Cath;een <cathleen at ramshorn.ca>

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*Contents:*

  * The Tsilhqot'in Decision: Time for Provinces and Industry to Accept
    Consent as New Standard <#mctoc1>

    The Tsilhqot'in Decision: Time for Provinces and Industry to Accept
    Consent as New Standard

      Jul 07, 2014 03:40 pm | Ramsey

On June 26, the Supreme Court of Canada released a much anticipated 
decision 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=26d7891f41&e=5861031705> 
in the Roger William Case, officially cited as /Tsilhqot’in Nation v. 
British Columbia/. The case got started due to a conflict over BC’s 
allocation of timber rights to clear cut areas of the Tsilhqot’in 
traditional territory.

MiningWatch knows the Tsilhqot’in Nation through our work on the hugely 
problematic and twice rejected Prosperity / New Prosperity Project being 
proposed by Taseko Mines Ltd. 
<http://miningwatch.us4.list-manage1.com/track/click?u=c89185f430617e4dc1a02762e&id=deefb3ec18&e=5861031705>The 
project is located outside the area that was in question in the court 
proceedings so is not directly affected by this decision. This has not, 
however, prevented the company from trying to put their spin 
<http://miningwatch.us4.list-manage1.com/track/click?u=c89185f430617e4dc1a02762e&id=2936d4b793&e=5861031705> 
on the decision suggesting it somehow clears the path forward for the 
project. The Tsilhqot’in countered 
<http://miningwatch.us4.list-manage2.com/track/click?u=c89185f430617e4dc1a02762e&id=02d905aa3a&e=5861031705> 
that nothing could be further from the truth, emphasizing that while 
they have not achieved recognition for title to the proposed mine site, 
an earlier decision recognized their  Aboriginal rights to harvest 
natural resources from the area – rights that would be significantly 
impacted by the project. But back to the recent decision…

The core issue in the case is the extent and nature of “Aboriginal 
title” or loosely put “ownership” over a traditional territory. (See 
this video 
<http://miningwatch.us4.list-manage2.com/track/click?u=c89185f430617e4dc1a02762e&id=bc6ac1ef79&e=5861031705> 
of lawyer Jack Woodward for background on the case.) Title is not 
exactly the same as fee simple, private property but is a unique type of 
property right that had not been well defined or applied to a specific 
piece of land by Canadian courts – until now.

It’s been a long process with a successful trial decision in 2007 that 
recognized title across 45% of the area in question and affirmed rights 
to harvesting resources across the rest of the area. A subsequent  
appeal court decision then only recognized title on small areas of 
intensively used lands or what Grand Chief Stewart Phillip and others 
call “postage stamps”.

The Supreme Court decision threw out the appeal court decision and 
affirmed the allocation of title to the broader area of land that 
included areas of seasonal and rotational uses for hunting, fishing, and 
provided added clarification on the meaning of Aboriginal title.

The Tsilhqot’in declared 
<http://miningwatch.us4.list-manage2.com/track/click?u=c89185f430617e4dc1a02762e&id=87aa3c4d58&e=5861031705> 
unequivocal victory following the decision.

Some commentators have been more nuanced and some critical of the 
decision from an Indigenous rights perspective noting the continued 
presence of important colonial constructs in the decision:  provincial 
jurisdiction to pass laws covering title lands, not recognizing title to 
areas of shared use between nations and other barriers required to prove 
title, and the ability to override opposition through a “justification” 
of the infringement of title rights. (See Twitter feeds of 
@apihtawikosisan and @Hayden_King for some interesting counter points)

Notwithstanding these limitations the majority of commentators conclude 
that this represents a substantial step forward in recognizing the 
rights of Canada’s Indigenous peoples to manage their territories. Of 
particular interest in the decision and in the succeeding media coverage 
has been the references to requiring the “consent” of Indigenous peoples 
before decisions affecting title lands are made. The decision is clearly 
pushing Canada into greater harmony with established international norms 
like the UN Declaration on the Rights of Indigenous Peoples.

Some other interesting aspects of the decision (all of which build on or 
reaffirm past decisions) include:

  * Recognition of rights to exclusive decision making of the land, and
    right to benefit from the use of the land.
  * Repudiation of the doctrine of /Terra Nulius/
    <http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=7b10a0b1e6&e=5861031705>
    which underlies Canada’s and the provinces assumption of control and
    ownership over the land base.
  * Title land must be managed in such away to ensure benefits of the
    land can be enjoyed by future generations;
  * A collaborative and reconciliatory approach must be taken by federal
    and provincial governments in dealing with Aboriginal rights issues.
  * Recognition that Indigenous laws and knowledge must be considered on
    par with the colonial systems;
  *   Economic interests of a corporation are not sufficient
    justification for infringing on Aboriginal rights.

Throughout the process mining and forestry companies have sided with the 
provincial and federal governments in an effort to minimize any 
recognition of title. The industry submission 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=cb9f74852a&e=5861031705> 
to the court  contains paranoid hyperbole about the devastating impacts 
granting title would have to regional and national economies and the 
unworkable challenges it would create for private enterprise. Since the 
decision the response directly from industry been muted but similar 
misplaced views are echoed in the Globe and Mail (here 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=edbd47ff9f&e=5861031705> 
and here 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=eefc5d2701&e=5861031705>) 
and in the Financial Post 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=1e7cbd9654&e=5861031705>. 

Certainly, projects opposed by First Nations with the potential to claim 
title will face stiffer opposition and have another legal barrier in 
their way. On the day the decision was released The Tahltan Nation went 
public with its intention 
<http://miningwatch.us4.list-manage.com/track/click?u=c89185f430617e4dc1a02762e&id=a38a3b871a&e=5861031705> 
to prepare an Aboriginal title and rights claim against the Province of 
British Columbia and Fortune Minerals Ltd for the controversial Arctos 
Anthracite Coal project in the Klappan area of Tahltan territory. But in 
this day and age projects facing Aboriginal opposition are not sailing 
through to completion anyway (Northern Gateway anyone?).

Building on decades of case law and a strong trend toward increased 
recognitionof Aboriginal rights, the decision sends a clear message to 
proponents - get consent or move on. This clarity could help reduce 
conflicts, not aggravate them. Getting consent is eminently possible in 
many cases - there are diverse examples of development projects in BC 
and elsewhere in Canada proceeding with the consent of affected 
Indigenous peoples. The Tahltan Nation noted above is a case in point.

One of the key factors that will determine how this plays out will be 
whether the provinces get on board and boost their standards for 
consultation before issuing mineral claims, exploration licenses, etc. 
While Ontario has made some progress on this front in recent years, B.C. 
and Quebec were well behind the pre-Tsilhqot’in standard for 
consultation and accommodation so they’ve got some serious catching up 
to do now.

Read More 
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