The Tsilhqot’in and Xeni Gwet’in Court Case for Rights and Title

November 21, 2007, a history making day!

Since November 2002, we have been waiting for Justice David Vickers decision in the case of Roger William v the Queen in Right of the Province of British Columbia et al.

The Xeni Gwet'in have been waiting for the last 145 years, since the beginning of the Tsilhqot'in War of 1864.

Today, that decision has been released to the public.

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1. Media release from Woodward and Company

DECISION REACHED IN HISTORICAL LAND CLAIM CASE

Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700

Victoria, British Columbia, November 21, 2007 - After a courageous and epic struggle, a small Tsilhqot'in First Nation that took on the governments of Canada and British Columbia to protect their land and way of life has been victorious in Court. In a major precedent-setting decision, Justice David Vickers of the British Columbia Supreme Court ruled today that the Tsilhqot'in (Chilcotin) people have proven Aboriginal title to approximately 200,000 square hectares in and around the remote Nemiah Valley, south and west of Williams Lake, British Columbia. Although Justice Vickers declined to make a declaration of title based on technical issues, he found that the tests for evidence of title were met in almost half the area claimed.

The trial lasted 339 days during which 29 Tsilhqot’in witnesses gave evidence, many in their native language. 604 exhibits were entered with Exhibit 156 alone containing over 1,000 historical documents. The Judge received about 7,000 pages of written submissions from the lawyers on all sides.

"The court has given us greater control of our lands. From now on, nobody will come into our territory to log or mine or explore for oil and gas, without seeking our agreement," said the Plaintiff, Chief Roger William. "The court recognized that we have proven title in about half of the Claim Area - and from today we accept our renewed responsibility and powers of ownership of those lands."

Justice Vickers made a number of important findings that will impact future relations between the governments of Canada and British Columbia and First Nations, including:

1. The Tsilhqot’in people have aboriginal rights, including the right to trade furs to obtain a moderate livelihood, throughout the Claim Area.
2. British Columbia's Forest Act does not apply within Aboriginal title lands.
3. British Columbia has infringed the Aboriginal rights and title of the Tsilhqot’in people, and has no justification for doing so.
4. Canada’s Parliament has unacceptably denied and avoided its constitutional responsibility to protect Aboriginal lands and Aboriginal rights, pursuant to s. 91(24) of the Constitution.
5. British Columbia has apparently been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871.

Throughout much of Canada and the United States, the colonial governments made treaties with First Nations to purchase their lands. This did not happen in most of British Columbia. The government has continued to deny that B.C.'s indigenous people inherited the land that their grandparents owned.

A longer version is available at: http://www.woodwardandcompany.com/william/newsrelease_long.pdf

3) From Justine Hunter's article in today's Globe and Mail, "In court, Judge Vickers spent 339 days hearing arguments about who owns the Nemiah Valley. His decision is expected to refer some issues back to the parties for negotiation, and almost certainly will be appealed to a higher court, but it will be the first time a Canadian court has ruled in favour of aboriginal title.

The Xeni Gwet'in claimed roughly 440,000 hectares as their traditional territory in a lawsuit that started as a battle against large-scale commercial logging. It is expected Judge Vickers will find the band established exclusive and continuous occupation - the current legal test of title - to nearly half of that parcel of land.

That's far more than the Crown has been willing to put on the table in negotiations. Modern treaties in British Columbia have averaged about 5 per cent of the traditional territories claimed, although they also include cash compensation.

Both the federal and provincial governments opposed the band's broad claims but made unprecedented concessions. The Crown accepted the band's claims to aboriginal rights to hunt and fish in the valley, and conceded title in a very limited way.

"This is an absolutely critical decision and it may have significant ramifications for treaty negotiations," Shawn Atleo, B.C. Chief of the Assembly of First Nations, said in an interview yesterday."

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2. Vaughn Palmer Article in Vancouver Sun

Wednesday, November 21, 2007
"VICTORIA - The B.C. Liberals are braced today for what is expected to be the first court decision recognizing aboriginal title -- ownership -- over a sizable territory in the province.

The courts have earlier recognized the existence of aboriginal title over B.C. in general terms, reflecting the historical fact that the native inhabitants were supplanted without treaties or other legal formalities.

But no Canadian court has recognized aboriginal title on the part of a specific group of natives over a specifically defined area of land.

Until now. Justice David Vickers of the B.C. Supreme Court is expected to do just that in a lengthy decision scheduled for release this morning.

William also asked the court to void provincial forestry legislation as well.

His argument was constitutional: The province has no jurisdiction over aboriginal lands, though federal legislation (including forestry legislation) would continue to apply.

If Vickers goes along with that -- and he is expected to do so at least in part -- it could open the way for a major jurisdictional shift in B.C.

About 95 per cent of the province is regarded as provincial-government-controlled Crown land, including surface timber and underlying mineral resources.

But most of those lands are subject to claims of aboriginal title. In future, Ottawa might have more regulatory control than Victoria over what is now regarded as provincial Crown land.

The natives also claimed damages against the province for infringing aboriginal rights and title over the years, particularly through logging in the band's traditional territory."