The Hammer: First Nations’ title to the land

Before there was European contact within BC, (Alexander MacKenzie had yet to traverse across the landscape – 1792), the King of England passed a Royal Proclamation in 1763 regarding aboriginal rights in his new territory that would eventually become Canada. Basically this proclamation states that the aboriginal people hold “title” to the land unless it is expressly ceded in a treaty. (Royal Proclamation-1763)

Since then, most provinces have signed such treaties, except in BC. The First Governor, James Douglas ignored this process and each successor deliberately refused to negotiate and develop treaties. The Chiefs of several nations in BC even asked the government of that time to negotiate treaties, but were rebuffed.  The arrogant attitudes of the colonial government (to not so long ago) towards fair treaties has left BC with few treaties in place. The  aboriginal people, therefore, have not ceded title to their land.

Then, for over 150 years, a dark history developed in Canada resulting from the Federal and Provincial laws and policies that promoted systematic discrimination against the aboriginal people. The Federal government openly tried to erase the aboriginal cultural from the land. Some call it attempted genocide. The First Nations people, however, endured and survived the abuses. They persevered and have rebounded with an engaged youth and a renewed cultural appreciation that we now embrace.

Until today, the definition of “title” and what that means was not defined in court.  A few landmark cases have upheld this concept, most notably the Delgamuukw case 1997, that reaffirmed aboriginal right to land (Overview: aboriginal rights to land), (Legal : aboriginal rights to land & limitations). Today, however, marked a historic decision (8-0 ruling) from the Supreme Court of Canada , that defines what ‘title’ actually means, what land it applies to and the rights that First Nations have to use the land. It is far too sweeping to discuss here except to say it changes significantly how the Federal and Provincial governments and project proponents have to deal with  First Nations. In effect large swaths of land have, and will, come under the control of First Nations in BC.  There is not only a duty to consult (which was not consultation at all) and accommodate First Nations – they now require the consent of First Nations. 

It would seem that First Nations really do hold the hammer.  The 1763 Proclamation set the stage that led to today’s court ruling. While there are many ramifications, the most recent one has to do with the Enbridge Northern Gateway and Kinder Morgan pipelines. There are no treaties on those lands and today’s ruling ends the archaic days when the all-mighty corporations, with government blessings,  could run over local interests. (the approval process for the 1952 Kinder Morgan pipeline project took just one day).

Despite the very legitimate concerns for the environment supported by science, it is very clear that the Federal Government does not care about the natural environment. With their disturbing attack on citizens and gutting legislation that stands in the way, the Federal Government has decided to take the unacceptable risks and have approved the Northern Gateway pipeline. Their real problem however, and perhaps the insurmountable problem, is not with the environmental opposition, (although it is big), but with the First Nations objections. This is the real battlefield now.  This is a very difficult time for First Nations people with much at stake with some potential benefits for struggling communities as well. So while environmental concerns are foremost and tens of thousands of citizens stand with First Nations, let’s hope the First Nations folks are true to their word and are not eventually bought out. Does everyone have a price?  Time will tell.

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