FieldNotes

The Reasons for Judgment in the Tsilhqot’in Land Claims Case (Xeni Gwet’in First Nation; Chilcotin Region) has been released (citation: Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700; link below).

As the decision includes a statement of Tsilhqot’in land ownership in the form of aboriginal title — including references to specific tracts of land — it will likely affect the choices First Nations make about joining or continuing in the Treaty Process. The ruling implies that a treaty is not required for such ownership to be recognized. The decision adds that aboriginal title lands are not Crown Lands. (The decision is a strongly worded follow-up to the 1997 Delgamuukw Decision which also affirmed the existence of aboriginal title in BC.)

From the Executive Summary:

The purpose of the court action:

The plaintiff seeks declarations of Tsilhqot’in Aboriginal title in a part of the Cariboo-Chilcotin region of British Columbia defined as Tachelach’ed (Brittany Triangle) and the Trapline Territory.

In addition, the plaintiff seeks declarations of Tsilhqot’in Aboriginal rights to hunt and trap in the Claim Area and a declaration of a Tsilhqot’in Aboriginal right to trade in animal skins and pelts.

Judgment (emphases in italics added):

The Court is not able, in the context of these proceedings, to make a declaration of Tsilhqot’in Aboriginal Title. The Court offers the opinion that Tsilhqot’in Aboriginal title does exist inside and outside the Claim Area. On the evidence in this case, title lands includes [a number of parcels of land identified specifically in the judgment].

Aboriginal title land is not “Crown land” as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1967.

The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title.

Tsilhqot’in people have an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial, and cultural uses. This right is inclusive of a right to capture and use horses for transportation and work.

Tsilhqot’in people have an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood.

Additional notes from the Executive Summary:

These rights have been continuous since pre-contact time which the Court determines was 1793.

Land use planning and forestry activities have unjustifiably infringed Tsilhqot’in Aboriginal title and Tsilhqot’in Aboriginal rights.

The plaintiff’s claim for damages is dismissed without prejudice to a renewal of such claims as they may pertain to Tsilhqot’in Aboriginal title land.

The link to the judgment is here — but be warned, the pdf file size is 35mb. The reasons for judgment are 485 pages long (and this explains why I have read only the executive summary!).

Watch Fieldnotes for more news about the judgment as it appears.

(See also the backgrounder pdf from Blakes Bulletin on Aboriginal Issues.)