The SCOC's Historic Tsilhqot'in Decision Granted Aboriginal Tiltle Plus Rights and Responsibilities

Chief Francis Laceese, of the Tl'esqox First Nation, who still oppose the NGP after the SCOC Tsilhqot'in decision

i live in B.C.. Two days ago was a day of celebration among everyone i know because of the historic unanimous ruling by the Supreme Court of Canada [SCOC] about the granting of aboriginal title to the Tsilhqot'in people. Then yesterday a more 'sober' attitude caused me to remember that rights and responsibilities are two sides of the same coin. After spending hours yesterday reading the opinions of legal experts, politicians, environmentalists, industry spokespeople, investment analysts and just plain folks, i went to bed with my mind muddled and my questions multiplied.

The ruling, according to legal experts, is historic in terms of First Nations land title and their future financial compensation for resource extraction and jobs for their peoples. This is very important as so many First Nations throughout Canada live in 3rd world conditions [or worse] despite the fact the lands they traditionally have lived on for centuries are so abundant in natural resources.

However the ruling, according the experts does not give First Nations a 'veto' over development on their lands. The government can still bypass the consent of First Nations to any project, including the Northern Gateway Project "by establishing a pressing and substantial public purpose" which is exactly what the Harper regime will do in each and every court case.

Yes the ruling does mean that First Nations will be compensated for the value of the imposition on their 'rights' [think Eminent Domain] but that's all it means in terms of environmental protection. In the Tsilhqot'in decision the SCOC defined not just the rights we were jubilantly celebrating but also some of the responsibilities on the other side of the coin. As i went to bed last night after trying to assemble a coherent picture of all this i realized i was still muddled.

This morning it became clearer that my BIG question is: Can First Nations [ceded or un-ceded land, new decision type of title or not] say NO to things like pipelines on the grounds of long term devastation to the biosphere or must they, like in the case of Eminent domain in the US, grant an easement then negotiate a compensation package based on the monetary 'market' value of the imposition?

The Supreme Court's ruling on the Tsilhqot'in case makes clear that this new aboriginal title does not give a band a veto on development. Governments must notify and consult bands whose rights may be infringed upon, and try to meaningfully accommodate the concerns. The bands must negotiate to reasonably resolve their concerns.

What about the Wet'suwet'en people, and many others, who never signed a treaty [unceded lands], who don't, as of now, have this type of Aboriginal title to their traditional lands but vow to keep all pipelines off their land? The Supreme Court stated, "the provincial or federal government can only pass laws impacting on lands under Aboriginal title if it shows a compelling and substantial benefit to the general public." But what about the Wet'suwet'en people's blockade? How about the many other First Nations living on unceded lands not covered by this new Aboriginal title who strenuously oppose the plans of developers [think Site C, LNG/fracking, forestry, mining, etc], who have stated numerous times they have no intent to permit the destruction of the web of life that supports us all on their traditional lands regardless of environmental protection or mitigation efforts?

The environmental destruction war up here in B.C. is far from over. One important battle for First Nations rights has been won, but that's all. First Nations have been being screwed for a long time up here. As of a couple days ago, they are now less screwed financially, but the biosphere is just as endangered, maybe more so, than it was before the ruling. IMO, most First Nations have been fighting for their traditional integrated biosphere worldview, for the web of life that supports us all, not compensation. But that's most, not all. First Nations are just people, they have different views, like all of us, they live under different conditions and pressures. The  Tsilhqot'in leaders, for instance have talked almost exclusively about the compensation due them and the third world conditions that their people and so many other First Nations live under and how this ruling will change that.

Below are some interesting quotes that, IMO, show how this 'clear and consise' ruling, like all human utterances, is being interpreted through the worldviews of the interpreters. Of course, i too chose those quotes that resonate best with my often muddled worldview.

“This [decision] 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.
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:" which says "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.” - Vaughn Palmer, Vancouver Sun

"The court established strict environmental rules that aboriginal groups and the government can do nothing to harm land for future generations. She said that in cases where aboriginal consultation on projects is in question, the government may be required to begin those processes over." - West Coast Environmental Law attorney Jessica Clogg

"The Supreme Court's unanimous ruling that governments must consult in good faith on proposed uses of aboriginal lands that could impair aboriginal rights will apply to decisions by all levels of government on major resource projects. The court also said governments may have to reassess prior conduct and legislation, which could prompt court challenges of past government actions, including controversial 2012 amendments to the Canadian Environmental Protection Act and the Navigable Waters Protection Act." - Jean Crowder, aboriginal affairs critic for the New Democratic Party in the Canadian Parliament. 

"All of which raises an interesting question. If we are agreed to constitutionally protect the property rights of some Canadians, why do we shrink from doing the same for others? Recall that the same Constitution that entrenched aboriginal rights, from which we now see derived aboriginal title, declined to protect the right to own property - a right that is also founded in common law, and that is often spelled out in statute, but was deemed unworthy of constitutional entrenchment. Like aboriginal title, the right to property is not absolute: In the constitutions of other countries, it is typically expressed as the right not to be deprived of one's property except by due process of law, and with just compensation. And yet at the time it was considered expendable. It would be too costly to have to compensate property holders for infringing on their rights. It would be inconvenient." - Andrew Coyne, The Leader Post, Regina