Supreme Court of Canada Agrees to Hear B.C. Native Land Claims Case

By Keller, James | The Canadian Press, January 24, 2013 | Go to article overview

Supreme Court of Canada Agrees to Hear B.C. Native Land Claims Case


Keller, James, The Canadian Press


Top court to hear B.C. land claims case

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VANCOUVER - The Supreme Court of Canada will hear a complex appeal involving a British Columbia First Nation's claim to aboriginal title over a wide area it considers its traditional territory -- a case observers say could have far-reaching effects on land claims in B.C. and across the country.

The top court issued a decision Thursday granting the Tsilhqot'in First Nation permission to appeal a ruling that rejected its claim to aboriginal title over 440,000 hectares of land near Williams Lake, B.C., in the province's Interior.

The B.C. Appeal Court issued a ruling last year that gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Appeal Court agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than asserting a claim over a broad area.

The Tsilhqot'in, a collection of six aboriginal bands that together include about 3,000 people, argue the court's decision failed to recognize the way its people had lived for centuries.

The court heard the Tsilhqot'in people were "semi-nomadic," with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

Chief Joe Alphonse, tribal chairman of the Tsilhqot'in, says it would be like arguing a country's borders only consist of areas where people physically live, while ignoring the areas in between.

"We own the broad territory," Alphonse said in an interview Thursday.

"There's no country that's going to define itself like that anywhere in the world, so why should that apply to First Nations people?"

The case dates back to the early 1990s, when the Tsilhqot'in first began using the courts and a blockade to stop logging operations in the area, setting off a two-decade legal odyssey that has cost tens of millions of dollars.

Alphonse said the case will answer fundamental questions about how to define and award aboriginal title -- itself a complicated term that grants natives exclusive control over their traditional lands, with certain limitations.

"With land, you have the power to govern yourself," said Alphonse. "We don't have that right now. First Nations across Canada are watching this case."

There have been several Supreme Court of Canada decisions that have shaped the definition of aboriginal title, how it is decided and what rights come with it.

But Prof. Sebastien Grammond, an expert in First Nations land claims at the University of Ottawa, said much of the law regarding aboriginal title remains vague.

He said the Tsilhqot'in case will determine whether the courts take into account the reality that First Nations didn't use the land like North Americans do now.

"It would seem to me that the B.C. Court of Appeal placed the bar very high, that an aboriginal group has to be able to show something like exclusive possession, like you have to have a fence over a plot of land," said Grammond, the school's dean of civil law. …

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