Is Reconciliation Really in Our Stars? Landmark Supreme Court Decision Recognizes Tsilquot'in Title
I really didn’t think reconciliation was possible in a country that has continually denied the genocide that has occurred on our lands. I knew the Tsilquot’in decision was coming and was going to be a big one, but I had not been prepared for Chief Justice Beverly McLauchlin’s words that read, “governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” (emphasis added). I cried the same spontaneous tears that I cried this morning when I saw my newborn nephew squish up his little wrinkly face and let out a howl to let us know another Wet’suwet’en was born. But, as I sat there reading the decision, it was Gisday’wa’s face I saw. I imagined his old cheeks slowly wrinkling into a grin, as our hereditary chief who passed only a few short months ago, would have felt joy and relief with news of this victory for the Tsilquot’in. So, while I celebrate this win, it is with a heavy heart that feels the pain our people, culture, languages, and lands have endured through centuries of denial and oppression. I hope he and all those who have fought on the lands, in the courts, and on the streets—our people who have lived and died as the dispossessed--can feel this somehow and can see a light at the end of the dark tunnel for our children.
It took about three hours to read through the decision and I was waiting impatiently for the catch. The limitations and restrictions. Eagerly I read and analyzed every word and phrase to see what this would mean for my nation, for the Tsilquot’in, and our brothers and sisters. In sum, McLauchlin concluded:
I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in. I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
What made this declaration truly unique from all previous decisions was the amount of detail included in an attempt to clarify the issues that abound on unceded Indigenous lands. The ruling, for example, not only clarified what title meant for the Tsilquot’in but, what it meant for all our nations who have yet to have title recognized. By summarizing the case law to date, McLauchlin noted that all the communities asserting title to lands must continue to be meaningfully consulted and accommodated. She stressed this did not just mean sending a few letters and continuing on with business as usual. Rather, she stated,
I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
As we can see in the media, there is a hope that this will be a new day for relationships, specifically for resource extraction on the territories. For the Tsilquot’in, “Crown lands” are now theirs to manage and decide upon their use (traditional or modern) for their people and for future generations. Section 94 asserts that, “This 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. As we have seen, this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land” (Tsilquot'in Nation v. British Columbia, 2014 SCC 44). The Tsilquot’in now stand a fighting chance to better the situation for their people and to show our nations what justice looks like!
The catch, however, is that provincial laws still remain and that Aboriginal Title and Rights can still be infringed by the Crown if the laws and the infringements can meet certain tests. Namely, the infringement must be for the greater common good and not counteract constitutionally protected rights and title. While the decision attempts to bring as much clarity to infringement processes as possible, I forsee this being the next era of legal battles that ensue for nations post-title. The following passage, I believe, decreases the value of the economic trump card:
First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
If we can move forward, with the agreement that future generations’ ability to benefit from the land is our common vision, then true reconciliation may be possible. This dream however is reliant upon new relationships being built that recognize our common humanity, our place in nature, and tackles the enormous problems our generation faces in creating human environments that balance and correct the damages done to our planet. If this cannot be agreed upon, we can count on centuries more to see that rights and title are truly recognized and respected.
While I believe this has been an outstanding decision made by the Supreme Court of Canada, the next steps will also rely on people and nations taking action and ensuring that respectful relations can ensue. For nations achieving recognition of title new divisions of power will have to be outlined as well as laws, governance, and management plans for title lands. Furthermore, restitution for damages to our lands will still be necessary. To explain this further, if someone steals your car and they are caught and convicted, then the car would be returned. If the rear end is smashed, however, the thief is liable for the damages. In this case, the car was stolen and the owner locked in the garage and their children were kidnapped during the joy ride! Hopefully, this decision leaves room for restitution to move forward by stating,
Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
For those of us still trying to get our “car” back we must move swiftly to prepare our own nations. For the Wet’suwet’en, I would like to thank our lucky stars that we didn’t sign a modern day treaty and that we know we have the three tests of title in the bag. The long shot, of having 100% of our 22,000 km2 recognized and affirmed is not a pipe dream anymore. However, our biggest hurdle is to have all of our communities—Hagwilget, Moricetown, Wet’suwet’en First Nation, Burns Lake Band, Skin Tyee, and Nee Tahi Buhn along with our hereditary chiefs of all of our clans to sit at the same table and envision our future together as a united nation. With the promise of recognition of our title and rights, I think the conversation has changed and that we will see the benefit of working together with the solid boundaries set by our ancestors and the trespass laws that are enshrined in our hereditary governance system. Imagine the possibilities!
I will sign off with my deepest gratitude and congratulations to the Tsilquot’in and to all those who have fought for Indigenous peoples’ rights and title. I hope everyone working in this field, actually, for every person in this country to read this decision to understand why we have never, ever given up fighting. I will no doubt write more about this in the future, so please leave a comment on areas or questions you would like me to tackle.
***Read the Supreme Court Decision here.
PHOTOGRAPHY ON YINTAH.COM:
Please contact me if you would like permission to use any of my photos. For more of my photography, please visit my Flickr page: