From AFN Press Release

Assembly of First Nations congratulates Tsilhqot'in National Government on Landmark Legal Victory at Supreme Court of Canada, Calls on Federal Government to Work with First Nations on New Approaches to Support Real Reconciliation with First Nations

OTTAWA, June 26, 2014 /CNW/ - The Assembly of First Nations (AFN) today commented on the Supreme Court of Canada's landmark decision in William v. Canada, a case dealing with the nature and scope of Aboriginal title and governance over Aboriginal title lands. The Tsilhqot'in Nation took the case to the country's highest court to defend their title and rights to their traditional territories in the central interior of British Columbia seeking a declaration of Aboriginal title.

In a unanimous decision written by Chief Justice Beverly McLachlin, the Court upheld the trial judge's findings that the Tsilhqot'in had proven Aboriginal title to approximately 200,000 hectares of land and went further than the trial judge by overturning the court of appeal and actually granting a declaration of Aboriginal title. This is the first time a declaration of Aboriginal title has ever been granted by a Canadian court.

AFN spokesperson and Regional Chief for Quebec/Labrador Ghislain Picard said, "On behalf of the First Nations across the country, we extend our congratulations and convey our gratitude to Chief Roger William, the Xeni Gwet'in and the Tsilhqot'in National Government for their leadership and determination in bringing this case forward and taking on this challenge over the past 25 years. This is truly a landmark decision that compels us all to embark on a new course. The court has clearly sent a message that the Crown must take Aboriginal title seriously and reconcile with First Nations honourably. This decision will no doubt go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada."

AFN Regional Chief of British Columbia Jody Wilson-Raybould stated, "This decision means we now have the opportunity to settle, once and for all, the so-called 'Indian land question' in B.C. and elsewhere in Canada where Aboriginal title exists through good faith negotiations. But in the short term, this decision will expose for all Canadians just how ineffective and limited the current mechanisms are for Canada to actually reconcile with First Nations when the Crown is required to do so. It is essential that the federal government coordinate its efforts and develop a broad reconciliation framework, which includes scrapping the existing comprehensive claims policies, overhauling the broken B.C. treaty making process and developing new and appropriate mechanisms to support reconciliation including self-government recognition legislation. This decision is the wake-up call the government needs and the Prime Minister must now take seriously First Nations' solutions and proposals aimed at reconciliation. With leadership, our country can and will move forward from its colonial past towards a new spirit of cooperation based on respect and understanding and where First Nations become full partners in confederation."

The William case arose from what was initially the Xeni Gwet'in and Tsilhqot'in Nation's response to logging activities within their territory more than two decades ago, when the Nation engaged in direct action and commenced legal proceedings to protect their title and rights. In November 2007, Justice Vickers of the B.C. Supreme Court found that the Tsilhqot'in had proven Aboriginal title to approximately 200,000 square hectares of land (representing approximately half of the Tsilhqot'in traditional territory claimed in the suit) in and around the remote Nemiah Valley, south-west of Williams Lake, B.C.. Vickers, however, failed to grant an actual declaration of Aboriginal title based on issues he had with the pleadings. At the B.C. Court of Appeal, the court would also not grant a declaration of Aboriginal title but went further in saying that the trial judge had overreached in determining the extent of Tsilhqot'in title lands and that if a declaration could be granted it would only be for "specific sites". On September 24, 2012, Roger William and the Tsilhqot'in Nation sought leave to appeal the B.C. Court of Appeal's decision, which was granted by the Supreme Court of Canada and heard on November 7, 2013. AFN was granted status as an intervenor at the Supreme Court of Canada hearing in support of the Tsilhqot'in Nation.

The Assembly of First Nations is the national organization representing First Nations citizens in Canada. Follow AFN on Twitter @AFN_Comms, @AFN_Updates.

For further information:

Alain Garon AFN Bilingual Communications Officer 613-241-6789, ext 382; 613-292-0857 or agaron@afn.ca

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From CBC.ca

Tsilhqot'in First Nation granted B.C. title claim in Supreme Court ruling

Top court's decision today resolves legal questions following 2012 B.C. Court of Appeal ruling

Posted: Jun 26, 2014

The Supreme Court of Canada has recognized the Tsilhqot'in First Nation's aboriginal title over a wide area to the south and west of B.C.'s Williams Lake, which it considers its traditional territory.

First Nation activist on landmark land claim ruling6:15

B.C. First Nations wins land claim ruling 4:00

June 26, 2014 - Grand Chief Ed John 7:27

External Links

Read the federal government's statement on the ruling

The Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot'in First Nation, the first time the court has made such a ruling regarding aboriginal land.

The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.

'It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.'- Grand Chief Stewart Phillip, president of Union of B.C. Indian Chiefs

The case focused on the Tsilhqot'in First Nation's claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.

A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot'in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot'in must identify specific sites where its people once lived, rather than assert a claim over a broad area.

The Tsilhqot'in, a collection of six aboriginal bands that include about 3,000 people, argued 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.

Establishes meaning of title

In its decision, Canada's top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

Occupation.
Continuity of habitation on the land.
Exclusivity in area.

The court also established what title means, including the right to the benefits associated with the land, and the right to use it, enjoy it and profit from it.

However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:

Economic development on land where title is established has the consent of the First Nation.
Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.

In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.

The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.

'Absolutely electrifying'

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot'in chiefs when they learned of the top court's decision, and said the mood in the room was "absolutely electrifying."

"We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It's very emotional," Phillip told CBC News.

"It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.

"I didn't think it would be so definitive," Phillip added. "I was actually prepared for something much less. It's not very often that I'm without words, and I'm quite overwhelmed at the moment."

Aboriginal Affairs Minister Bernard Valcourt said in a statement Thursday that the government will review the "complex and significant issues" in the decision.

"Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians," Valcourt said in the statement, adding that the government has concluded four treaties in B.C. since 2006, with others under negotiation.

NDP critic Jean Crowder welcomed the ruling and said the governments at both levels have for too long taken the chance that aboriginal title would never be recognized in going ahead with development.

"Now, all levels of government will need to stop and consider whether or not they've met the duty to consult or justified an infringement. Governments will have to meet this obligation so development can continue, with First Nations determining how to use the land, not third-parties, to the benefit of many Canadians," Crowder said in a statement.

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From CBC.ca

Supreme Court to rule on Tsilhqot'in First Nation land title claim

Decision could have consequences for aboriginal land title claims across Canada

Posted: Jun 25, 2014

The Tsilhqot'in First Nation asked the Supreme Court of Canada to recognize its aboriginal title over a wide area to the south and west of Williams Lake and Alexis Creek, which it considers its traditional territory.

25 years of legal battles

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.

mi-bc-130124-tsilhqotin-drum

The Tsilhqot'in already have hunting, trapping and trading rights in their traditional area, and have fought a very public battle in the courts to limit the expansion of mines within that area. (Jonathan Hayward/Canadian Press)

Aboriginal law experts say it could answer fundamental questions about how to define and award aboriginal title - a complicated term that grants natives exclusive control over their traditional lands, with certain limitations.

It could also have a significant impact on treaty negotiations in B.C. as well as in other parts of the country where land claims disputes still persist.

The B.C. and federal governments have both opposed the Tsilhqot'in's claims for aboriginal title.

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From Toronto Star

Supreme Court ruling on land title will affect natives, government, industry

The Supreme Court of Canada will rule Thursday in a landmark British Columbia case that is expected to be one of the most significant aboriginal law decisions in the court's history.

By: Tonda MacCharles Ottawa Bureau reporter, Published on Wed Jun 25 2014

OTTAWA-The Supreme Court of Canada will rule Thursday in a landmark British Columbia case that is expected to be one of the most significant aboriginal law decisions in the court's history.

The judgment will tackle the question of aboriginal title and will have big repercussions for years to come as industry, governments and aboriginal groups move to develop - or block - mining, energy and other resources or infrastructure like the Northern Gateway pipeline across contested lands throughout Canada.

Native groups, industry and governments are hoping the top court will clearly set out how to define aboriginal title - or ownership of land in the absence of a treaty ceding it - in practical terms.

At the heart of the case is whether governments and courts should take a broad view of aboriginal ownership of lands historically used and occupied by First Nations, or do nomadic living, hunting, trapping and fishing traditions of aboriginal peoples lead to a narrower view of what territory they can lay claim to.

A secondary question is whether provinces or only the federal government can regulate things like timber rights over land where aboriginal title is recognized or claimed.

"It's really significant," said University of Ottawa law professor Angela Cameron. "It's going to determine whether a First Nation can get a little piece of land or a big piece of land."

No matter what the court decides, however, experts say the high court has never held that aboriginal title means an indigenous group would get exclusive rights to and use of the land.

Still Thursday's ruling has more than the Tsilhqot'in group on tenterhooks.

There are large tracts of unceded territory in many provinces, including Ottawa itself. "The Supreme Court of Canada, Parliament buildings, the city of Ottawa are on the same kind of territory as the Tsilhqot'in," said Cameron.

"It's unceded. There's never been a treaty with the Algonquin of Ontario."

The principles the court lays out Thursday may well impact talks around other key developments, such as Ontario's massive mining play in the north, known as the Ring of Fire.

In November, the high court judges examined an aboriginal title claim by six bands known as the Tsilhqot'in, who number about 3,000 people and live in the remote Chilcotin central interior region of British Columbia.

Their legal battles began over clear-cut logging permits granted in the 1980s. A series of blockades eventually drew promises by the B.C. government not to grant timber rights without their permission - a promise that was soon broken.

One chief, Roger William, in the name of his Xeni Gwet'in First Nations Government, launched the current title claim, with the rest of the bands joining his bid to expand the Tsilhqot'in title over a large tract of land, approximately 4,380 square km. The area is not subject to any competing claim by another First Nations group, as is the case in many regions of B.C. where there are overlapping and competing claims.

Lawyer Thomas Isaac, who has written 10 books on aboriginal law and litigates cases on behalf of industry and government clients across Canada, said in an interview this may be the first formal declaration by the high court of aboriginal title.

And whether the court takes an expansive view, as a B.C. trial court did, of the Tsilhqot'in's title to land, or a much more limited view as the B.C. Court of Appeal did, Isaac expects the ruling to maintain a theme that has shown up in every aboriginal case:

"I would assume you will see the court continue to do what it's done in all of these decisions . . . try to strike a balance between the governmental authority on the one hand, and the rights of aboriginal peoples on the other hand."

In the lower courts, the Tsilhqot'in title claim was met with sharply contradictory decisions.

B.C. Supreme Court Judge David Vickers, who heard more than 339 days of evidence over five years, ruled in 2007 that the Tsilhqot'in could show title over about 40 per cent of the traditional territory they claimed where they lived prior to contact with Europeans, amounting to about 1,750 square km of land, based on their historic and regular use.

But the B.C. Court of Appeal overturned that, saying the Tsilhqot'in title was "site-specific" or limited to a small number of particular sites where the aboriginal group was able to demonstrate "intensive use" and occupation.

It was a huge blow to aboriginal groups, dozens of whom have intervened in the William case.

The Tsilhqot'in people argued fiercely before the Supreme Court that the B.C. Court of Appeal approach was inflexible, extreme and more restrictive than anything seen at common law.

Such a rigid standard "it accords no weight (let alone equal weight) to Aboriginal perspectives on occupation or the manner in which the society used the land to live."

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From Financial Post

Pipeline prospects take a hit as Supreme Court grants land title to B.C. First Nation

Dwight Newman, Special to Financial Post | June 26, 2014

THE CANADIAN PRESS/Darryl DyckFrom left to right, Chief Francis Laceese, of the Tl'esqox First Nation, Chief Roger William, of the Xeni Gwet'in First Nation, checking his phone, and Chief Percy Guichon, of the Tsi Deldel First Nation, stands near a poster showing opposition to the Enbridge Northern Gateway Pipeline during a news conference in Vancouver, B.C., after the Supreme Court of Canada ruled in favour of the Tsilhqot'in First Nation, granting it land title to 438,000-hectares of land on Thursday.

Aboriginal communities' land claims have become much more viable, making future resource development iffier

The Supreme Court of Canada has just released its latest take on the rules on Aboriginal title - and the first declaration of Aboriginal title in Canadian history. Its groundbreaking decision concerning the Tsilhqot'in Nation's claims has the potential to reshape aspects of Canadian resource development more broadly. To understand why, we need to back up a bit to understand what the case has changed on Aboriginal title and why that matters.

Aboriginal title is the form of ownership Aboriginal communities hold over unceded lands that they regularly and exclusively used in the past. It is not identical to but is analogous to the fee simple title that private landowners hold, with the important difference that the courts have always considered Aboriginal title land to be collectively owned by a particular Aboriginal community.

The potential for Aboriginal ownership claims of this sort was first suggested by the Supreme Court of Canada in its 1973 decision in the Calder case. The addition of an Aboriginal rights section in the 1982 constitutional amendments committed Canada to such land rights being constitutionally guaranteed - with very little clear sense as to the implications that would result.

In the Tsilhqot'in case, which has been making its way through the courts over the past decade, the trial judge suggested that the test developed in past decisions was too strict and would unjustly reduce the scope of Aboriginal title to lands the size of "postage stamps." Although procedural aspects of the case prevented him from making a declaration of Aboriginal title, his judgment came the closest to doing so that any Canadian court has - until now.

The Supreme Court's judgment now says that Aboriginal title will be established based on regular and exclusive use of land prior to Canadian sovereignty. That regular and exclusive use may even have been semi-nomadic in nature. In areas where land claims have not been settled - such as much of British Columbia - this decision has major implications. Various Aboriginal communities' land claims suddenly look much more legally viable.

Where title exists, development would normally take place on that land with the consent of the community. That said, the Court has a dozen paragraphs in which it carefully enunciates a test for when government can, in certain circumstances, override Aboriginal title based on a compelling and substantial public interest.

Government can, in certain circumstances, override Aboriginal title

Where title has not yet been proven but a viable claim exists, the duty to consult means that government must take that title claim into account and, as that claim is stronger, engage in potentially significant accommodation of the title claim.

This case significantly strengthens the ability of Aboriginal communities with title claims to reject resource development on their lands. That does not mean they will choose to do so. Many Aboriginal communities wish to participate in economic development. However, they have more control after this decision than before so as to come to their own decisions.

At the same time, governments have a clear ability to override Aboriginal title where there is a genuinely compelling public interest and where they are ready to do so transparently and in accordance with the legal hurdles required.

What this means for resource development, though, is probably three things: a strengthened role for Aboriginal communities in approving or rejecting some projects; an increased challenge for resource companies that have not developed sufficiently strong relationships with Aboriginal communities; and a need to build even stronger public approval around megaprojects like pipelines that interact with many Aboriginal communities if they are to move forward in the face of continued disagreement by some communities.

In turn, what those things mean for those involved in the resource sector is that they need, even more than before, to continue realizing that the challenging parts of resource extraction may not be the physical ones but the broader set of social and human questions associated with resource development. That has implications for business strategy and business practices. It has implications, as well, that there should be a call out to the younger generation interested in sophisticated work balancing the various facets of responsible development - there is work in Canadian industry for them. How Canada responds will shape its future.

The Supreme Court of Canada, as Canada's final appellate court, is tasked with a tremendously delicate balancing act as between Aboriginal title claims, the claims of provinces to the use of provincial natural resources, and the economic development potential in Canada's natural resource wealth. In its historic Aboriginal title decision in the Tsilhqot'in case, it has meaningfully reshaped that balance in ways that will need further analysis in the time ahead but that will arguably reshape Canada's future in the years and decades to come.

Dwight Newman is Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan, and author of Revisiting the Duty to Consult Aboriginal Peoples (Purich Publishing 2014).

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Supreme Court ruling on First Nation traditional land title will affect communities, government, industry