Course:CONS370/2019/The history and potential impacts of the Tsilhqot'in land claim agreement (2014) in British Columbia, Canada

The Tsilhqot’in Nation is a First Nations group that has occupied their territory in interior British Columbia (BC) since time immemorial. This nation has predominantly featured in the Canadian discourse around Indigenous title and resource rights in BC since 2014. The history of the Tsilhqot’in versus British Columbia case dates back to the 1980s but has only recently received a verdict. The Tsilhqot’in land claim agreement was an important landmark in the management of natural resources and First Nations rights in British Columbia. A unanimous 8-0 decision by the Supreme Court of Canada (SCC) in 2014, recognized Aboriginal title of the Tsilhqot’in Nation. This decision was the first to recognize expansive Aboriginal Title to their traditional territory by the SCC. The agreement itself is the first of its kind in British Columbia and serves as both a test and guideline for other First Nations who seek to pursue similar land claim agreements.

Tsilhqot'in Nation

Language & Culture

The Tsilhqot’in Peoples are traditionally part of the Dene, which is Athabascan speaking. Their name means “people of the red river” and refers to the Chilcotin Plateau region in British Columbia. Their traditions predominantly include drumming, storytelling, community celebrations, and the utmost protection of the environment and nature as it is integral to their way of life.

Location & Communities

The Tsilhqot’in Nation includes approximately 3,000 people that live between the Fraser River and the Coastal Mountains in west-central British Columbia. The traditional territory includes the Chilcotin River and the headwaters of the Homathko, Kliniklini and Dead Rivers that flow west towards the coast.

History/Background

The Tsilhqot’in Nation dates back before colonial contact, when families organized in autonomous bands that would travel around independently hunting, fishing and gathering. During certain times of the year they would come together, and in the summer they would migrate around rivers to fish the salmon runs. As well in the middle of winter they would build shed-roofed homes or pit houses near lakes where they could ice fish.

The Tsilhqot’in Nation lived uninterrupted until 1808 when they experienced their first European encounter with Simon Fraser along the west bank of the Fraser River. To the irritation of the Nation this contact continued intermittently for many years and in 1861 a pack trail was created through the Tsilhqot’in territory leading to a developing gold mine. This sparked the Chilcotin War when six Tsilhqot’in Chiefs starting a resistance against the intrusion and killed several workers on the trail. These Chiefs were tried and executed for these actions in 1864, and it was not until 2018 that Justin Trudeau formally apologized and exonerated the Tsilhqot’in Chiefs for their wrongdoings. After the Chilcotin War the Tsilhqot’in Peoples began to settle and establish farms and ranches west of the Fraser River. Between 1887 and 1904 reserves were created for the various bands.

Governance

The Tsilhqot’in National Government, a tribal council was created in 1989 in Williams Lake, BC. This council represents many First Nations bands located throughout the Chilcotin Plateau. These include; Esdilagh First Nation, Tsi Del Del First Nation, Yunesit’in First Nation, Tl’etinqox-t’in First Nation, Tl’esqox, and the Xeni Gwet’in First Nation. The purpose of the Tsilhqot’in National Government is to empower the Tsilhqot’in peoples to exercise their rights in their traditional territories in ways which represent Tsilhqot’in philosophy, values, experience and culture. Through this they hope to promote and facilitate social and economic well-being of the Tsilhqot’in peoples while protecting and preserving the lands which they cherish.

Rights and Title

Nenqay Deni Accord

The Nenqay Deni Accord is a significant document that was signed on February 12, 2016 between xx and xx. The importance of this accord is that its formation was spurred by the landmark 2014 court decision of the Tsilhqot’in Land Claim. This accord is to provide the framework for the next steps in establishing Aboriginal Title. Firstly, the document address the steps for reconciliation between the Tsilhqot’in Peoples and the government of British Columbia. The overarching goal of this accord is to establish the outline for management and control of the Tsilhqot’in’s historic territory. The accord will establish ownership of the land for parts of the territory, while others would still be under management of the province on behalf of the nation. The plan is being developed in a 5-year consultation process that commenced after the accord was signed on September 10, 2014 and is ongoing at the time of writing this. The land base needs to be categorized and organized in order to assign the new managers of the land. Once the consultation period concludes, a new management regime will be put in place that will have lasting impacts for the province as a whole.

What can be seen as unique in this case is that the Supreme Court ruled in favour of expansive Aboriginal Title. Then the government of BC had to approach the negotiations as a government to government agreement while following the guidelines laid out by the court. The court’s decision did not outline the specificities of what such a title would constitute, and this created the need for an accord to be written. The tenure arrangement in the new land agreement will mirror a First Nations Woodland License for harvesting done by the nation, while revenue sharing agreements can be granted in the territory. This is significant in that the nation can choose to harvest its own timber and select the level of production the raw timber receives before it is shipped or used within the territory. The revenue sharing provides an opportunity for the nation to continue to make money if they choose not to harvest the timber themselves. Timber production is an expensive and technical process that requires specialized equipment. If the nation opts not to develop an internal lumber processing capacity, it will still be able to collect some form of a royalty for the harvesting of timber by outside logging companies on its land base.

Tsilhqot'in Vs. British Columbia

The Tsilhqot’in peoples have occupied their historic territory in the South Chilcotin, Cariboo Region of interior BC since time immemorial. In Eastern Canada, First Nations predominantly have treaties that have involved some forfeiture of rights over their traditional lands. However, in BC the majority of First Nations' land claims have gone unresolved and this has led to the development of case law passed down by the Supreme Court of Canada that has detailed how negotiations between government and First Nations must be conducted. The Tsilhqot’in Nation is one of several nations that have unresolved land claims in the province. The issues in this case stem back to 1983 when the Ministry of Forests granted a commercial forest license to Carrier Lumber Ltd. to harvest on Tsilhqot’in traditional land. While the Tsilhqot’in government opposed the initial license the challenge was not recognized and logging in the territory continued. In 1998 the license was altered and again the nation challenged the license. this time the idea of Aboriginal title was attached to the amended license in the inclusion of xxx.

The Tsilhqot’in Nation was then able to challenge the legality of logging on their traditional lands. Building on the case law that had been establish in the 1980s and 1990s the Supreme Court handed down a landmark decision to grant Aboriginal Title in this case. The decision was drawn from the building case law that had been established by; Calder v. Attorney-General of British Columbia (1973), Guerin v. The Queen (1984), R. v. Sparrow (1990), Delgammuku (1997), and Haida Nation v. British Columbia (Ministry of Forests) (2004).

The significance of this case is that it was the first time in Canadian history that expansive, and not 'postage stamp' Aboriginal Title was granted by the court. A decision like this outlined new guidelines for First Nations communities in BC (non-treaty land) to challenge resource licensing on their traditional lands in hopes that title could be granted. In writing the decision, Justices that authored the decision constructed a test for if title exists. This is possibly the most important part of this decision because it sets a precedent for future land claim agreements. The impact of this precedent cannot be understated as this has the potential to reshape land use in the province. The test has three main criteria ; sufficiency of occupation, continuity of occupation, and exclusivity of occupation. The Justices applied this test to the Tsilhqot’in Nations claim and began the process of evaluating the criteria to render a decision. Ultimately it was decided that the criteria was met and that Aboriginal Title must be granted. The specific details of what Aboriginal Title is, was not in the scope of the court’s decision, it has then been left for negotiation between the province and the nation as a government to government agreement. However, there are still some considerations that the negotiators must keep in mind that the court highlighted. In the decision the Justices outlined that Aboriginal Title must include some notion of exclusive rights to their historical lands. This has substantial implications for resource managers in the province. The Crown or province is able to issue forest license for “crown timber” which is found on crown land. Within the province's Forest Act there is no section about issuing licenses on Aboriginal Land, which may be characterized as private land after the decision, which would preclude the government from legislating it. The Justices concluded that the onus of proof for Aboriginal Title is on each Aboriginal claimant, meaning that it is the Nation that must prove that they have title, and that lands will be treated as crown land until the date that title has been proven on a case-by-case basis.

Affected Stakeholders

The affected stakeholder in this case study is the Tsilhqot’in Nation who showed courage and strength when fighting to achieve recognition and authority over their ancestral territories. By doing this they have set the stage for other First Nations groups to follow suit. The Tsilhqot’in Nation has a connection to lands that predates European contact. They look to protect and preserve their lands from unsustainable uses by government and industry personnel.

The Tsilhqot’in Nation has a relatively high power in the decision making process when it come to the use of their lands. Since Aboriginal Title was granted, government and industry personnel must receive consent from the Tsilhqot’in Nation for proposed activities.

Interested Outside Stakeholders

Stakeholders	Implications/Relevant Objectives	Relative Power
Federal Government	History was made in Canada by granting the first Aboriginal title in its history. This decision reduced the federal government's power. The Federal government no longer has exclusive legislative authority when it comes to Indigenous Peoples. The federal governments power is limited to Indigenous Reserves only.	Limited
Provincial Government	The Provincial government has gained a boost in power while also gaining a lot obligation when it comes to Indigenous Peoples after the Aboriginal Title decision. The provincial government can no longer hide behind the federal government as they are responsible for negotiating outstanding treaty promises. The government is now obligated to consult with Aboriginal Peoples when it comes to projects that are going to impose on their rights and title. When consent is not giving and the Provincial Government can justify infringement to the supreme court by demonstrating meaningful consultation, compelling public objective, and proving that the infringement did not exceed what was necessary to achieve the objective. Reason for infringement on aboriginal title lands will not be easy but it does give the Provincial government high power in the end.	High (expanding)
Logging Companies	First Nations have been long excluded from the forestry sector and they’re now sitting at the table increasing logging company’s obligation to consult with First Nations regarding operations on Aboriginal Title lands. As well the allocation of timber on Crown land no longer applies to trees on lands that are attach to Aboriginal Title, so First Nations groups will now be getting a bigger share of the logging operations.	Low (Decreasing)
Other First Nations Groups	First Nations across Canada are celebrating this decision, as it has gotten the ball rolling for more title decisions to be made in the future. This case has provided a baseline of knowledge for all First Nations and they now know exactly what is needed to gain Aboriginal Title. As a result all First Nations groups should reassess their claims and make sure that they are strong enough to proceed. With this gain knowledge and success to work off of the relative power of other First Nations groups has increased.	Medium (On the Rise)

Conclusion

The Tsilhqot’in Nation's Aboriginal Title agreement was a monumental step for Canada and it is just the beginning. Our country still has a lot to learn from this decision and from here on government, industry, and First Nations groups alike need to make changes, as the power dynamics have shifted. Industry and government professionals have increased obligation to consult and operate in a respectful manner on Aboriginal Title lands and this responsibility will continue to increase as more First Nations gain Aboriginal Title. In order for more title cases to be successful First Nations groups across the country must learn from the Tsilhqot’in case and reassess their own situations to make sure that they have the strongest case possible.

References

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