BC Land Claim Ruling: Canada's Keystone Cop Stumbles
By Eric Walberg *
On June 16, Prime Minister Stephen Harper officially approved Enbridge’s Northern Gateway pipeline project to the Pacific coast to export tar sands oil, just days before Canada’s Supreme Court wrapped up its deliberations on the Tsilhqot’in Nation land claim. Coincidence? Or attempted arm twisting?
The government insists that the pipeline project is of vital national import and is environmentally sound (read: overriding any native sovereignty complaints). The hope was that the Supreme Court justices would soft-pedal native claims and leave room for the government to use its majority to push through its tar sands agenda before the next federal election, leaving a fait accompli.
If that was the idea, it backfired royally. Last week’s Supreme Court of Canada decision granting title to 1,700 square kilometres of land in British Columbia to the Xeni Gwet’in (one of six communities which together constitute the Tsilhqot’in Nation) surprised both sides with the principled stand of the justices.
The decision is the culmination of over a century of conflict over the land in question. It definitively rejects the legal argument terra nullius (empty land) which has been used to justify seizure of supposedly uninhabited lands in the absence of treaties, leaving natives with ‘postage stamp’ reserves. The lie that the Xeni Gwet’in were not inhabiting land which they had lived on for hundreds of years was exposed, setting a precedent for all future negotiations. Moreover, even where there are no treaties (yet), the government(s—federal, provincial, municipal) will have to deal with the natives living on any disputed lands as equals.
Canada’s relations with its native peoples have slowly been shifting from outright war, betrayal and forced assimilation, to a grudging acknowledgment that the natives have both enduring claims to their lands, and a right to preserve their culture when confronted by the equally enduring colonial and neocolonial invaders. Section 35 of the Constitution Act (1982) affirmed aboriginal rights in general, which the Sparrow case (1990) reaffirmed by recognizing Aboriginal and treaty rights as “existing rights”. In the Haida case (2004) the Supreme Court said that Aboriginal peoples had to be consulted and accommodated before the Crown could take decisions that impacted adversely on their Aboriginal rights, though the underlying Crown title to unceded aboriginal lands was still maintained. Thus the British Columbia Forest Act, which authorized logging on unceded land as though aboriginal title did not exist.
The current case (William vs The Queen) really began with the Chilcotin War in 1864 when the natives fought to prevent a new road from passing through their territory. John Robson, editor of the New Westminster Columbian, who would later go on to serve as premier of the province, warned at the time: “Depend on it, for every acre of land we obtain by improper means we will have to pay for dearly in the end, and every wrong committed upon those poor people will be visited on our heads.” The proposed road was halted and only in 1973 was a road pushed through.
The battle heated up in 1983 when the BC government granted a logging licence on land southwest of Chilcotin’s Williams Lake, Tsilhqot’in traditional hunting lands outside the boundaries of the reserve. The natives launched a court case in 1989, which ultimately cost $30m, resulting in a landmark decision by BC Supreme Court Justice David Vickers in 2007, awarding the Tsilhqot’in people ownership over almost half of their territorial claim.
The court heard from elders, community leaders, historians, cartographers, archeologists, anthropologists, forest ecologists, hydrologists, ethnobotanists, wildlife ecologists, linguists ... The days of governmental fiat and disdain for natives were coming to an end. But the provincial and federal governments appealed the decision in 2012, and the BC Court of Appeal overturned the Vickers award, confining aboriginal title to a few scraps of the traditional territories of a given First Nation.
This led to the current Supreme Court of Canada case launched by Tsilhqot’in First Nation Chief Roger William, requesting a court ruling to determine if the land at Williams Lake was in fact ‘occupied’. The justices ruled that, indeed, native “semi-nomadic” occupancy qualifies. No need to put up barbed wire fences and build roads and suburbs to qualify as ‘occupied’. “The Province’s land use planning and forestry authorizations under the Forest Act were inconsistent with its duties owed to the Tsilhqot’in people,” said the justices.
The Tsilhqot’in got some of their land back after a century and a half. Perhaps more important, even where there is no clear land title, the province must consult with aboriginal groups about uses of disputed land and accommodate their interests, the top court said. Grand Chief Stewart Phillip of the Union of BC Indian Chiefs said the ruling marks the start of a “genuine dialogue of reconciliation that has eluded us for so long.”
And none too soon. There are hundreds of indigenous groups across British Columbia with unresolved land claims. On nearly half of Canadian territory, no treaties were ever signed; land was appropriated by stealth, especially in BC, Quebec and the Maritimes.
It is not just a question of consulting and paying some bribes. The Delgamuukw case (1997) ruled that Aboriginal title was on a par with non-Aboriginal land ownership, giving the right to exclusive occupancy and the right to enjoy the economic benefits of the land. So it is no longer enough to argue that national priorities can override native claims, and to proceed to confiscate land and pay a pittance to give the ‘transaction’ a patina of legality.
And that goes for Enbridge’s $7-billion Northern Gateway pipeline proposal. One pipeline would transport 525,000 barrels of oil a day from Alberta’s oil sands to the Pacific to deliver oil to China. About 220 large oil tankers a year would threaten oil spills on the Pacific Coast. Another pipeline would move 193,000 barrels a day of condensate to Alberta to dilute tar sands bitumen sludge so it can flow through the first pipeline. Together, they would cross a 1,177 km path through northern BC and more than 50 Indigenous territories, ecologically sensitive areas prone to landslides (and land claims).
Harper has said Canada’s national interest makes the pipelines essential. Chinese state-owned companies have invested more than $40b in Canadian energy in the past few years. But native groups are unanimous in opposing the pipeline and tar sands projects, and the broad coalition of Canadians to stop them continues to grow. A March 2012 poll found 66% of BC residents opposed to Enbridge's proposal to transport oil through inside coastal waters, including 50% who strongly disapproved. BC’s Liberal Premier Christy Clark has said she won’t green-light the project unless it meets her economic and environmental conditions.
Apparently the Supreme Court justices were not impressed with Harper’s desperate attempt to pressure them. Even President Obama continues to balk on the TransCanada’s Keystone XL pipeline that would take oil from Alberta to the US Gulf Coast. Harper announced that he was “profoundly disappointed” that Obama delayed a decision on Keystone, and spoke of the need to diversify Canada’s oil industry (97% of Canadian oil exports now go to the US). Now his whole vision of Canada as the ultimate ‘hewer of wood and exporter of oil’, and best friend of the US, looks on the verge of collapse.