Tuesday, 13 January 2009

Tsilhqot’in (Chilcotin) Landmark court decision

I asked a Tsilhqot’in friend to write about the how the court decision impacted his people and by extension all negotiating Kwakwaka'wakw Nations under the BC Treaty process. Russell is finishing up his Masters thesis in Indigenous Governance at the University of Victoria. His response is broken into several sections that outline the court case, how it impacts the BC treaty process and finally Russell's personal reflection on the subject. I want to extend my gratitude for this important piece of writing. It will be helpful in further understanding our position as a Nation negotiating under a illegitimate treaty process.

To Chiinuuks & people of the land

I want to express my thoughts and share information concerning two divergences that have yet to converge. The BC Treaty Process and the Supreme Court decisions resemble two routes to playing politics in trying to gain recognition for the land that we still belong. While the province of BC holds onto power and its identity as colonizers, the Supreme Court decisions are attempting to get meaningful negotiations on track.

I am Tsilhqot’in. I have followed the stories and recent activities of my nation. In 1992 Xeni leaders established a road block to preserve the forests along the Tsilhqox and Dasiqox (rivers) from unsustainable logging practices. Soon afterwards, the Xeni people were rejected by the provincial government in attempts to creating a management plan to protect hunting and trapping in the area. As a last resort, the Xeni Gwet’in sought the courts to gain access to managing the land.

Meanwhile, the provincial government told the Tsilhqot’in they would only consider co-management of the forest if the nation settled through the BC Treaty Process. However, as Tsilhqot’in, we have maintained that we cannot allow a thief make a judgment of its own theft and therefore legitimize stolen lands.

In November 2007, BC Supreme Court Justice Vickers issued his decision on whether Aboriginal Rights and Title exists within the Xeni claim area. Although the declaration failed on a minor technicality, thus not making the decision legally binding, the text concludes that Aboriginal Title does exist in 50% of the land claimed or about four thousand square kilometers. In addition, although Aboriginal Title possesses a test (as provided in the Delgamuukw decision), Aboriginal Rights was found to exist in 100% of the area claimed.

A year has passed, and while Nenqayni nations (Nenqayni meaning ‘people of the land’) have claimed a small ‘victory’ in affirming and recognizing rights and title, it is apparent that our nation is struggling with settlers, governments and corporations to fully understand the significance of what this means. In October 2008, the BC Provincial government failed miserably to offer anything substantial in an initial-agreement, and it was rejected. Meanwhile, the Federal government remains silent. And the lack of progress invites the nation to return to the Courts through the Appeal process to render the technicality.

Now what I wanted to present was the ways in which I thought this court decision would shake the whole province, especially for the BC Treaty Process. What is significant in the Tsilhqot’in court decision is the way in which it frames meaningful negotiations, granting Nenqayni nations more leverage.

First and foremost, Justice Vickers is re-asserting the need for nation-to-nation negotiations with the Federal government. I believe this is done in respect to the treaties that have been conducted all across Canada – this is an established legal norm where Nenqayni nations dialogue with the Canadian State, setting up treaties as international arrangements. I am making no comment on if this is better, as I see the species of one coyote and two coyote as very similar, but the reason for this is groundbreaking.

Aboriginal Title is akin to fee simple private lands, although held collectively. Because Canada is responsible for “Indian” lands, Aboriginal Title falls into their jurisdiction. This means that all provincial government legislation is absolutely void, possessing no jurisdiction on Aboriginal Title lands: the Forestry Act, Mining Act, Licenses, Permits, etc. Moreover, the provincial government cannot extinguish actual or potential Aboriginal Title lands; only the Federal government has the power to do so. In addition, private lands held by settlers are not exempt from being Aboriginal Title lands. This is quoted several times in Judge Vicker’s court decision:

[997] Given that the jurisdiction to extinguish (Aboriginal Title Rights) has only ever been held by the federal government, the province cannot and has not extinguished these rights by a conveyance of fee simple title to lands within the Claim Area: see Delgamuukw

[998] Thus, regardless of the private interests in the Claim Area, those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in Aboriginal Title.

[1047] I am aware of the serious implications this conclusion will have on the British Columbia. However, I agree with Professor Kent McNeil when he explains that long established principles have been conveniently ignored. At p. 194 of “Aboriginal Title and Section 88 of the Indian Act”, he states:

Ever since the Catherine’s Milling Decision in 1888, it has been apparent that exclusive federal jurisdiction over “lands reserved for Indians” might well include jurisdiction over Aboriginal Title lands. So in acting as though it had constitutional authority over Aboriginal title lands in British Columbia, the province has skated on thin constitutional ice for over a century. In reality, it appears that the province has been violating Aboriginal Title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871. What is truly disturbing is not that the province can no longer do so, but that it has been able to get away with it for so many years.

The BC Supreme Court is commenting on the BC government’s inadequate position of denial, and in almost every account, explaining why the BC government is wrong. Moreover, the court decision suggests that the BC government has never possessed jurisdiction over Nenqayni lands. This analysis may also be extended towards the BC Treaty Process.

From one perspective, the principles guiding the BC Treaty Process have not changed in lieu of the recent BC Supreme Court decisions, decisions which continue to acknowledge and (re) affirm Aboriginal Title and Nenqayni nations as the proper right holders of the land. For example, the Haida, the William, the Delgamuukw cases all exemplify Aboriginal Rights and Title that have been ignored, misrecognized, infringed, and laws that have failed to give Nenqayni the meaningful ability to manage and benefit from the land that they belong to. So while the courts uphold the laws protecting Nenqayni interests, the BC government continues to deny Aboriginal Rights and Title – or diminish the significance of these rights.
In the William case (2007) concerning the Tsilhqot’in, the BC Supreme Court suggests that the reconciliation through treaties is the proper avenue to address historical injustices. There is no doubt that the court room is ill-equipped to mediating two sovereign claims. McLachlin’s notes in the Haida case that “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty” and to guarantee rights that are guaranteed. In addition, the Supreme Courts continue to refer to “the Honor of the Crown” in securing and protecting Aboriginal interests that are being negotiated, claimed or proven.

So in understanding all of this, the BC government and the BC Treaty Process is unable to address or negotiate the historical injustices, the fact that there is no consent or legitimacy in Crown sovereignty amongst Nenqayni, respect rights and title that is guaranteed, or act in preserving the land that is in question. Why? This requires serious justification.

What is also significant in Judge Vicker’s response is that he applies the critics who have reflected most on the ill approaches that the provincial and federal governments have advanced. Take John Borrows’s disdain for the courts and governments in their ideas of reconciliation:

[1342] …Courts have read Aboriginal rights to lands and resources as requiring a reconciliation that asks much more of Aboriginal peoples than it does of Canadians. Reconciliation should not be a front for assimilation.

Reconciliation should be embraced as an approach to Aboriginal-Canadian relations that also requires Canada to accede in many areas. Yet both legislatures and courts have been pursuing a course that, by and large, asks change only of Aboriginal peoples. Canadian institutions have been employing domesticating doctrines in their response to the [Royal Commission on Aboriginal Peoples]. This approach hinders Aboriginal choice in the development of their lands and resources, rather than enhancing it.

Take Gordon Christie’s emphasis on the role of the courts:

[1358] …The practical outcome of this should be clear – this should bring the governments of Canada to the negotiating table, and would give Aboriginal peoples the sort of strength they need to work out a fair accommodation, a resolution of the ills caused by centuries of colonialism. This is as it should be, for from the perspective of the theory and principles underlying the superstructure of Canadian society and Canadian law there is no other way to work out an appropriate place for Aboriginal peoples in contemporary society. For Canada to advance to maturity, for the social compact to welcome within all those currently living within Canada’s geographic boundaries, Aboriginal peoples must be able to bargain their way into a fair constitutional contract. This can only happen with the recognition on the Canadian side of the table of the position occupied by Aboriginal peoples: they come to these negotiations in the same state they were in 500 years ago, as organized societies existing prior to the assertion of Crown sovereignty, societies organized according to separate and distinct conceptions of the good and of how to lead good lives.

Over and over it is stated that reconciliation must be conducted by the federal legislative authority in regards to its constitutional responsibilities. The BC Treaty Process continues to relegate Nenqayni nations into a domestic position within the Canadian framework. The process seeks to extinguish land that is not in their power to extinguish.


What does this mean for the BC Treaty Process?

1. Negotiating Treaties should not be conducted by the Provincial government.
2. The Canadian federal government and Nenqayni nations should be relating to each other on a nation-to-nation basis. Therefore, recognition of this international status would provide a starting point towards looking at each other as equals.
3. Treaties can embrace the constitutional recognition of Aboriginal Title or Rights, section 35. Extended from this, Nenqayni nations resemble proper holder of generative land rights that pass over time.
4. Land that is recognized as Aboriginal Title should be rendered ineffective by provincial government legislation. Therefore, the Mining Act, Forestry Act, permits and licenses, etc. do not apply.
5. Aboriginal rights exist within 100% of the territory to which the Nenqayni nation belongs (fishing, hunting, trapping, etc.), requiring the duty to consult and possibly accomodate when Nenqayni interests (i.e. potential infringements) are concerned. ‘Modified’ rights diminish constitutionally recognized rights.
6. The extinguishment of land should not be the government’s primary legal initiative; land should be shared (the idea of rights attempt to address this); guidelines on how to accommodate rights and interests should be established.
7. There should be no absolute limitations placed on negotiations – negotiations should allow for free negotiation; in this case, private lands are not exempt.
8. Reconciliation should include full acknowledgement of historic injustice to make applicable action plans to directly address those injustices (land thievery and damages, violating grave sites, residential school abuse, etc.).

Personal Reflection:

I chose to write to show how there is some leverage in the court arguments that allow Nenqayni nations to advance in this colonial game of denial. While Nenqayni continue to succeed in the moral and legal fronts, honesty and respect remains absent in the political arena. Nenqayni are dealing with an enemy that does not even respect its own laws. If it did, the BC Treaty Process would change its principles to honor the conclusions that come from these successive court decisions.

I continue to be extremely weary of the BC Treaty Process and its effects on all Nenqayni within British Columbia, especially internally within each community due to the lack of dialogue and divisions the process creates, but also to the external, where the energy in forming Nenqayni alliances with each other has diminished in favor of trying to gain resources or seeking recognition from colonial governments who want to relinquish their responsibility and limit our autonomy.

I am also weary of the Court decisions, as lawyers have perpetuated a language game that ultimately neglects the full incorporation of Nenqayni philosophies and language. The failure of both these processes lies in the fact that, as institutions, they do not receive Nenqayni legitimacy due to the lack of participation, understanding and consent with the people/land that it will affect for years and many generations.

Again, the Tsilhqot’in court case offers political strategies that challenge the provincial government; it illustrates the various ways in which the BC government is wrong. It is our responsibility to hold them to account. So while the courts slowly transform their colonial biases, the BC government retains its rigid and static view, greedily clutching its dominant position over Nenqayni, exemplified perfectly by the conservative BC Treaty Process and its inability to change.

As a last word, my position is not final; I am always open to critique, as I only hope to contribute to a healthy dialogue concerning the fate of Nenqayni land. My email is rossr@uvic.ca

Sechanalyagh, thanks

Russell Samuel Myers Ross