BY: KELSEY ROLFE
No British Columbia premier has ever met with the Tsilhqot’in Nation on their home turf. Nor had one ever sat down with aboriginal titleholders as equals. Christy Clark, B.C.’s current premier, was the first to do both in early September, when she participated in two unprecedented meetings about June’s historic Supreme Court decision on aboriginal title and signalled a change in the provincial government’s approach to reconciliation.
Clark and John Rustad, the minister of aboriginal relations and reconciliation, met with the Tsilhqot’in in their territory on September 10 to sign a letter of understanding. The letter committed the province to implementing the nation’s newly established title rights to a chunk of land the Tsilhqot’in now own—nearly the size of Prince Edward Island—by March 2015. The next day, Clark, along with her entire cabinet and all her deputy ministers, sat down with the leaders of B.C.’s 203 First Nations and other aboriginal organizations in a Vancouver ballroom to talk about the court ruling’s implications for the rest of the province.
Of B.C.’s First Nations, more than 180 haven’t negotiated treaties with the provincial government and stand to benefit from a province-wide implementation of the Tsilhqot’in decision, which would allow them to own and economically benefit from their ancestral lands. It would also prevent the Crown from infringing on those rights. (Under Section 35 of the Constitution Act, however, the Crown could conduct certain actions after consulting First Nations and providing evidence of a “compelling and substantial purpose.”)
First Nations celebrated the ruling and its implications, but business and government have been plunged into a state of uncertainty. B.C.’s business community, specifically the resource sector, is unsure of its footing with projects located in areas with possible land claims. The provincial government, caught off-guard by the ruling, is unsure how best to move forward with other native groups who claim title. But now, more than ever, a clear path is what’s needed.
“[The province is] talking about energy, they’re talking about mining, they’re talking about pipelines and all of these things. They need to create certainty for industry, for investors,” said Grand Chief Edward John, an executive member of the First Nations Summit in B.C. “They need to create certainty for themselves and, as First Nations, we need certainty as well.”
The Tsilhqot’in win was possible in part due to the 1997 Delgamuukw Supreme Court ruling, which found that aboriginal title did exist—though the judges didn’t establish it for the Gitxsan First Nation, which took the British Columbia government to court. The ruling also provided a test for establishing aboriginal title in the future, which requires the group to prove it occupied the land before the Crown asserted sovereignty over it. “It’s a fairly stringent test,” said Bill Gallagher, an Ontario lawyer specializing in aboriginal issues. “Not all First Nations are going to meet the bar.”
When the Xeni Gwet’in—one of six communities within Tsilhqot’in Nation—did meet that bar, the B.C. government wasn’t prepared. Until the day before the decision came out, the province was sending letters to First Nations chiefs about pipeline rights “that would indicate that they were actually clueless as to the impact of an aboriginal title ruling coming down from Ottawa,” Gallagher said.
“They didn’t have a strategy in place to anticipate a fundamental shift in the legal reordering of the province.” he said. “Since they basically ‘fessed up within 48 hours [of the Supreme Court ruling] of not having a Plan B, and needing time to consider the implications of the court case, they are coming at this from deep in left field.”
Seeing the Clark government go from a position of “denial” to acknowledging the need to recognize Tsilhqot’in title and start a dialogue with other First Nations, was, to Gallagher, “one of the most important about-faces any provincial premier has done in recent memory.”
In the letter of understanding, signed in Tsilhqot’in territory southwest of Williams Lake in B.C.’s interior, the province promised it would redress the hanging of Tsilhqot’in chiefs in 1865, transition the title area to Tsilhqot’in control, and help develop a protocol agreement for the territory by March. For the Tsilhqot’in, the meeting was monumental.
“With Christy you have…the first premier that’s ever come into Tsilhqot’in lands. To me, that’s leadership, that’s what we’ve been waiting for,” said Chief Joe Alphonse, a tribal chairman for the Tsilhqot’in National Government. “She believes we can create a win-win situation, that’s all we ever wanted.”
In Vancouver, the all-chiefs meeting was less successful. First Nations came to the table with a four-part communiqué. If the province approved, it would commit to implementing aboriginal title province-wide and moving to consent-based decision-making, which would force both the province and businesses to change the way they interact with First Nations communities.
After a full day of debate, the fate of the communiqué came down to “a lawyerly discussion,” Grand Chief John said, about the wording of the promise. Government and First Nations lawyers couldn’t come to an agreement on the central question of whether title existed in every aboriginal territory not settled under treaty.
Minister Rustad defended the government’s position as a desire to work together with First Nations. “The conditions that the leadership council had put forward were fairly unilateral,” he said. “We want to actually sit down and talk with [First Nations], try to work with them and develop a joint path forward.”
Gallagher said it’s no surprise the province couldn’t agree to the four major promises. “One First Nation wins a monumentally important court case, but that doesn’t mean the province is going to put pen to paper as if every First Nation has won it,” he said. “[That] did not satisfy the native strategists. In fairness to the native strategists, [they] fully expected to win, had their next ten steps all mapped out, and are very frustrated today having to take baby steps because the government are slow learners.”
John said he’s still optimistic. “I don’t make too much of the communiqué in the end,” he said. “It began that dialogue that’s been missing for a long time. The premier talked about being in the fork in the road and deciding which way to go. I think we’re all kept there and we’ll continue to talk.”
Rustad admitted the province doesn’t know what future negotiations will look like. It’s possible it could end up settling title separately with each nation based on individual needs. Alphonse suggested the Tsilhqot’in negotiations could serve as the “new standard” for title settlements, but John said many nations wouldn’t want to wait until March to see what that looks like.
Not everyone is certain of the provincial government’s good intentions. Grand Chief Stewart Phillip, from the Union of B.C. Indian Chiefs, accused the cabinet of “talking out of both sides of their mouths,” contrasting Clark’s “eloquent speech” at the beginning of the Vancouver meeting with the province’s unwillingness to agree to the communiqué.
“Based on the intransigence of Premier Clark and her government, the future will be very litigious and we’re going to end up slugging this out in the courts,” Phillip said. And according to John, some nations have already begun filing court cases to assert their own title.
Phillip compared Clark’s “public relations” approach to the “valiant effort” made by previous premier Gordon Campbell, who worked with First Nations in 2005 to draft legislation that would recognize aboriginal title.
Campbell’s attempts ultimately failed because of blowback from B.C.’s business community, and distrust among First Nations. That failure, Gallagher says, is why Clark’s efforts need to be given a chance. “I think Gordon Campbell was on the right track. I’m also prepared to cut Premier Clark a lot of slack, because her initiative has to succeed,” he said. “It requires a very high degree of statesmanship, it has to be allowed to work.”
Naysayers and advisors from the business community were “effective the last time in squelching the reforms,” Gallagher said. “And if they do it again this time, there will be consequences.”
