Huge Implications for Supreme Court’s Tsilhquot’in Nation Ruling

By Joe Gunn

The land must not be sold permanently,
for the land is mine and you are but aliens and my tenants.

Leviticus 25:23

A late June ruling of the Supreme Court of Canada is causing shock waves among those who espouse an out-dated vision of how the Canadian economy should produce wealth. According to the highest court in the land, that traditional economic dog will no longer hunt.

Since the European “discovery” of the Americas, Canadian economic historians described the preferred model of development as “the staples theory.” Starting with Harold Innis, these theorists saw Canadian exports to Europe of raw materials (“staples” not being heavily processed here, such as cod from the Atlantic, wheat from the Prairies, and fur, lumber, and minerals from across the land) as what shaped, and continue to shape, Canadian economies and institutions. But whether yesterday or today, the drive to cut, mine, and extract for export has run into conflict from Aboriginal peoples upon whose lands these resources are found.

The Supreme Court ruling confirmed the judicial recognition to aboriginal title of the Tsilhquot’in Nation over thousands of square kilometers of territory in British Columbia’s interior. The decision has huge implications.

First Nations across the country should now feel encouraged in their struggle to realize self-governance strategies and use the natural resources present in their territories to develop their communities. As the Chief of the Tsilhquot’in Nation, Roger William, stated, “This case is about us regaining our independence.” Other First Nations will find new arguments in this ruling for negotiating better arrangements with major resource development projects in their territories.

It pushes provincial and federal governments to obtain consent from title-holders and to consult and even accommodate First Nations in cases where ownership is asserted, but yet to be established. This is a burning issue in BC, where most First Nations have not signed treaties. In Canada’s most westerly province the treaty process is slower than the erosion of the Rockies – only two treaties have been implemented since 1993. Thus, the treaty-making process could (and should) be pushed by governments into a much higher gear.

Prime Minister Stephen Harper made an impressive apology to Aboriginal peoples for the sordid history of native residential Schools in June 2008. The Truth and Reconciliation Commission, later established by the federal government to play a role in repairing that damaged relationship, has carried out impressive meetings across the land – yet so much more needs to be done before true reconciliation becomes a reality. Although the federal government intervened in the court case to argue for a limited definition of aboriginal title, it is now time to change course. The Supreme Court ruling could play a role in this reconciliation process if true negotiations now lead to more collaborative development plans for future projects – allowing Aboriginal people more ability to be architects of their own development and beneficiaries of their own lands and resources.

For private industry, the stakes are financially massive. Whereas the Business Council of British Columbia intervened to argue that an expansive definition of Aboriginal title could devastate the economy, they should now embrace the new rules of the game which could lead to more needed certainty than ever before. It has to be accepted that some projects will be rejected. Others may be slowed down. But approvals after true consultation, negotiation, and accommodation with Aboriginal people may proceed as win-win opportunities for all stakeholders.

For those interested in Canada’s commitments to develop more “green” economic strategies in future, the implications of this ruling are also precedent-setting. Environmentalists are already concerned that the federal government is not doing nearly enough to meet our stated commitments to reduce greenhouse gas emissions. They will be watching if proposed new coal mines (such as the project Aboriginals oppose at the sacred headwaters of the Skeena, Nass, and Stikine Rivers in BC) or pipelines (such as the Northern Gateway project approved by the federal government to carry bitumen from Alberta to ports on the Pacific coast for export to Asia) will proceed.

Allowing Aboriginal people to preserve traditional survival lifestyles on their lands could definitely influence Canadian energy futures. The International Energy Agency has concluded that meeting the G8 commitment to limit global temperature rise to 2 degrees Celsius means that we must leave 2/3 of the earth’s known reserves of fossil fuels underground. Although the Canadian government has in no way recognized this fact, President Barack Obama has. In a June 9th interview reprinted in the New York Times, he stated, “We’re not going to be able to burn it all.” Aboriginal decisions to reject massive fossil fuel extraction schemes on their lands, or allowing developments only with strict conditions on environmental safety and emissions, would be doing humanity a great and eternal favour.

As long ago as 1998, CPJ produced a workbook of reflections entitled Wîciwetowin: Walking Together on the Path of Justice. It focussed on the idea that our broken relationships with Aboriginal peoples could only be reconciled and repaired if we embark on a journey towards justice alongside our Aboriginal neighbours. For Christians, the biblical story in Genesis 9 speaks of God’s covenant never to destroy the earth again with a flood. The Supreme Court decision allows us to imagine treaties as a form of covenant with Aboriginal people, but even goes further. We have an additional responsibility to people who have not signed treaties – a responsibility to respect Aboriginal title as the right to consultation, negotiation, and accommodation of economic activity in the lands they’ve occupied since the Creator bequeathed them.

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1 thought on “Huge Implications for Supreme Court’s Tsilhquot’in Nation Ruling”

  1. Dear Joe,

    Dear Joe,
    It was a joy to read your summary of the implications of the Supreme Court decision on the ‘Tstillhquotin land claim. It was written in such a hopeful key, so that all kinds of good visions of a new kind of shared planning and transformed “development” danced in my head. I hope lots of CEO’s read it!


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