Seeing the Tsilhqot’in Decision Only Through the Veil of Our Hopes is Naive and Dangerous

Chilko Lake - Spiritual Center of the Tsilhqot’in peoples

Since writing 3 articles [here, here and here] about the impacts of the Supreme Court of Canada [SCOC] Tsilhqot’in decision i've received a lotta emails from a wide range of readers, including quite a few U.S. attorneys. The one thing i can say unequivocally is that the responses show just how valid the Rorschach Test is. Conservatives and investors see the decision as a road map to successful development strategies. Liberals see it as a regulatory victory against unbridled development. Human rights advocates see it as a huge victory for non-treaty First Nation [FN] peoples who have been treated so unfairly for so long by the European colonists [with which i totally agree]. Environmentalists see it as winning an important battle, but certainly not the war [me too].

FNs themselves see it in their own Rorschachian way. Some, like the Tsilhqot’in leaders, spoke with heartfelt joy the day after the ruling about how hopefully now their poverty stricken villages can afford running water, septic tanks and maybe year around road access. Others who have already signed treaty agreements [especially after the Grassy Narrows decision a week later] know that the new Aboriginal Title rights are meaningless for them.

Many other First Nations who haven't signed away their claims through past treaties view the Tsilhqot’in decision with great hope. The Sechelts, whom i lived next door to for over 35 years, said in an article in the local paper that the, "High court ruling will have ‘astronomical’ impact". Citing the fact that BC's Ministry of Forests had already contacted them to setup a consultation process about development proposals on the Sechelt's traditional lands.

It's mainly this last, perhaps overly optimistic, group i'm concerned about.

Quoting Judith Sayers, Aboriginal Law Professor at UVIC about the 'Right of Consent' portion of the ruling: "The court was clear that when aboriginal title has been proved as the Tsilhqot’in have, they must consent to any development on their lands.  If they do not consent to development, the government must ensure that it has fully consulted and accommodated their interest and can only do things that have compelling and substantial objectives and now have to take into account the aboriginal perspective on their actions. They must also ensure their action are consistent with their fiduciary obligation and are within the framework of s. 35 requirement.  That means there will be minimal impairment to aboriginal interests and there is enough for future generations.  Finally, there has to be a principled reconciliation of First Nations interests with the interests of all Canadians.  Principled, a new word added by the courts for a good reason."

IMO, whatever development a First Nation doesn't consent to will be taken to court by the government who will claim the development has "compelling and substantial public purpose" [which Canada's Harper regime already claims willy nilly about every corporate friendly thing]. The only recourse Aboriginal Title holders would have, if the claim of "compelling and substantial public purpose" is upheld in court, is to a fair 'market' compensation [again probably determined by a court]. gone will be the right to defend the 'web of life' that supports us all on spiritual grounds. In the eyes of the courts, money talks and bullshit walks. In which case, the latest jubilation will turn into another debacle for the environment. It will though, thankfully, stand as a human rights victory for Canada's FNs and will be a big step towards a more fair economic solution for some FNs going forward which is a very good thing.

Almost all of the U.S. lawyers pointed out how important the use of the word 'compelling' is in the SCOC Tsilhqot’in ruling. Compelling is apparently a pivotal word in Eminent Domain law stateside. As of now the law there follows the Illinois State Supreme Court ruling which says, "That any government body can generally always find some public purpose to justify a taking therefore there must be a limit on the eminent domain power." Going on to say, "The court is the main guardian of the public needs in eminent domain cases" And, "That compensation for the easement or foreclosure, if not arrived at through negotiation, must be determined by the courts."

The Fraser Institutes's latest report sees a growing role for Ottawa to 'justifiably infringe' on Aboriginal rights. It warned if two sides can't come to terms - a growing challenge given the polarized debates over pipelines and oil sands - it will create a greater role for governments to "justifiably infringe" on Aboriginal rights to ensure the development goes forward for the greater good of the country. Adding, "The federal and Alberta governments routinely cite the national importance of building pipelines to tidewater ports to transport growing volumes of oil [tar-ed.] sands bitumen to lucrative oil markets in Asia and around the world. Ottawa has estimated the lack of market access costs Canada as much as $18 billion annually."

It's time for all Canadians to look into what is 'really' happening and how this precedent setting SCOC decision is going to be used in the exploitation of an estimated 33 trillion dollars of our natural resource wealth in Canada. Seeing the world only through our own preconceptions, our own worldview, our own hopes, is naive and dangerous.