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And then there were nine

After the Tsilhqot’in decision, more lawsuits and more questions

Tim Querengesser is senior editor with Alberta Venture. Email Tim

Jul 14, 2014

by Tim Querengesser

Canada is all over the place when it comes to Aboriginal land rights at the moment – and you can thank the same court. On the west coast, no less than nine constitutional challenges launched by First Nations in British Columbia could now either delay or block the federally-approved Northern Gateway Pipeline proposal, and they logically follow the Supreme Court of Canada’s landmark Tsilhqot’in decision, in late June. But in the east, that same Supreme Court ruled last week that a First Nation in Ontario, which has signed a treaty with the Crown, has few land rights to stand in the way of the province if it wants to allow industrial logging.

What gives? In a word, treaties.

On Monday, Union of B.C. Indian Chiefs Grand Chief Stewart Phillip made known that nine First Nations in that province are now working together, legally, to block Northern Gateway. “When I am standing out on the land … shoulder to shoulder, it’s not going to be for a better deal,” Phillip told CBC. “It’s going to be to protect the land and the environment.”

Phillips and other chiefs are likely emboldened by the Supreme Court’s ruling, in June, that First Nation land title on untreatied land (as much of B.C. land is) could flow from unceasing “occupation” – which it created criteria to define. The decision, made in a case launched many years ago by the Tsilhqot’in First Nation in B.C. over concerns about a company logging on several thousand hectares of its traditional lands, seemed to call into question whether development projects could proceed in the future without the tacit support of an affected First Nation.

But don’t think that applies to land that is treatied, as most of the rest of Canada is. On Friday, the Supreme Court unanimously ruled that Ontario – and not the federal government or First Nations – has ultimate authority to award logging rights to forestry companies in that province, regardless of Aboriginal title claims or treaties. The case between the Grassy Narrows First Nation, north of Kenora, and Ontario has long been contentious. Logging has been permitted for decades on land that Grass Narrows considers its traditional territory.

The major difference between Grassy Narrows and the Tsilhqot’in is that Grassy Narrows has signed a treaty with Ottawa and the Tsilhqot’in has not. What does this mean? Hayden King, director of the Centre of Indigenous Governance at Ryerson University, writes in the Globe and Mail that, for First Nations which have signed a treaty, Tsilhqot’in has changed nothing. “… [I]f Tsilqot’in is a “game-changer” in the relationship between provinces, industry and First Nations in non-treaty areas, last week’s Grassy Narrows decision on areas where treaties do exist affirms that the rules are still effectively the same.”

Why? King explains that while First Nations see treaties – signed in the east and heading northwestward across the Canadian frontier between 1871 and 1921 –  as sharing agreements, the federal government sees them instead as title extinguishment agreements.

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