Some of the reactions to the Supreme Court’s decision in the Tsilhqot’in First Nation case, which requires pipeline projects and similar developments to seek aboriginal approval, are so over the top they cannot go without comment.
Nearly forty years ago a case from the Nisga’a community known as Calder made a similar long journey through the courts, and it was there that the Supreme Court (long before the Charter) held that the arguments from both Ottawa and British Columbia that no aboriginal title or claims survived the arrival of European settlement was wrong.
The invasion and occupation of the Americas had been seen by imperial powers as a conquest of empty land, whose borders and boundaries were decided by any number of treaties and agreements signed in Europe. In the sixteenth century there was even a theological argument in the Valladolid debate about whether aboriginals were human. The doctrine of “terra nullius” was often invoked to assert the legal fiction that these lands belonged to “no one” before they were “discovered” by white people from Europe.
The Calder decision rightly blew those doctrines out of the water, and urged governments, First Nations, and other aboriginal peoples to sort out their relationships on the basis of equality and respect. Since that time, in a variety of ways, governments have made an effort to do this, but it has been slow, halting, begrudging, and only rarely successful.
From time to time the Court has had to weigh in, at each juncture being careful, some might say judicious, to point out that there is something called “the honour of the Crown,” that governments owe a fiduciary duty to aboriginal peoples, and that they have a responsibility to consult and accommodate.
Centuries before Calder, governments often signed treaties, with a variety of motives. The French and English signed “peace and friendship” treaties as a way of ensuring military loyalty. The so-called numbered treaties were more or less imposed between 1875 and 1925 to ensure the land was cleared. Two recent books, James Daschuk’s Clearing the Plains and John Long’sTreaty 9, raise important issues about the moral and legal foundation of these agreements, and their implications for the modern world.
More recently, some groundbreaking modern treaties have been negotiated and signed – in Quebec, Labrador, Nunavut, Northwest Territories and British Columbia – in which more equal and positive relationships have been established with shared powers, revenue distribution, and massive land claims that have recognised aboriginal jurisdiction over large portions of their traditional lands. They have altered the political and economic landscape to better recognise the fact that First Nation and aboriginal governments are real, and have a jurisdiction that needs recognition in fact and in law.
This is the context in which the Tsilhqot’in decision must be understood. Forty years ago the Court said aboriginal title existed. In this case, after an exhaustive trial, the Court said it exists in a defined piece of land.
But the Court hardly gave the store away. They pointed out that the land has been under the effective control of the Tsihlqot’in all along. Their title is of a collective nature, and exists for perpetuity. Other governments have a stake too, and can override title, but only in a clearly defined and limited way and for purposes that have been given greater clarity by the Court. And in an important statement the Court said, in paragraph 97 of the decision, that government and businesses worried about an assertion of aboriginal title would be well advised to seek the consent of the First Nations and aboriginal governments before proceeding with development plans.
Just a few years ago, the Harper government dropped its longstanding opposition to the United Nations Declaration on the Rights of Indigenous Peoples, and agreed to sign. That document calls for “free, prior and informed consent” before developments can proceed.
The policy path is clear. Aboriginal people and their political entities have a valuable part to play in the federation as governments alongside provincial and federal governments. This was agreed to by first ministers in the 1992 Charlottetown Accord. Peoples that have been systematically abused, ignored, and sidelined by development, now have a right to jurisdiction over their lands based on history and facts on the ground. These governments should have the right to decide how they will be used and to share in the benefits that flow from that, as well as the right to be consulted, involved, accommodated, and indeed compensated if they are to be expected to agree to development. Some projects won’t happen, but most will, and the result will be to begin the end of an aboriginal poverty that is a stain on our nationhood.
This process is in fact a win for all Canadians, because it allows us to finally embrace our broader identity, not as conquerors or oppressors, but as a people struggling to become whole. It’s the nation building that remains to be done.
And of course arguments will continue, because things have been done in the name of development that have been truly destructive. The flooding of vast swathes of land without recognition of both the environmental degradation and the economic costs, mines that have never been properly cleaned up, the pollution of rivers and lakes that has destroyed the fishery and human health and never been paid for: the list goes on, and there are still days of reckoning ahead. Will this cost the provincial and federal treasuries? Yes, indeed, but these are bills that must be paid.
Those who complain that the courts are not good places to resolve these issues should look in the mirror and ask themselves what they have really done to allow them their speedy and just resolution in another way. Governments have hemmed and hawed, opposed and delayed, and only come to the table when all other opportunities were exhausted. They are running out of excuses. Which is a good thing.