Tsilhqot’in ruling: reaffirming colonialism?

The Tsilhqot’in Nation, a First Nation in interior British Columbia, has won a major battle in Canada’s Supreme Court. In an 8-0 decision, the Supreme Court ruled that the Tsilhqot’in Nation does indeed have title over their territory, and that this title gives them rights over the use of that land. Everyone agrees that this ruling has set a new precedent and will change the way Canada must deal with treaty negotiations. But how much of a victory is it, really?

First, a bit of background. In 1983, the Tsilhqot’in people blockaded in protest of provincially granted commercial clear-cut logging on their territory. The province agreed to consult with the Tsilhqot’in concerning industrial activity on their territory, but talks broke down. Eventually the Tsilhqot’in was forced to take the provincial government to court, arguing title over their land.

The first ruling was favourable. In 1997 the BC Supreme Court ruled that the Tsilhqot’in had title over 1,750 square km of land (their original claim was 4,380 square km). The BC Court of Appeal overturned that ruling, saying they could only claim title to “specific, intensively occupied” sites within their claim, not the entire territory. The Tsilhqot’in appealed to the Supreme Court of Canada, arguing that they use their entire territory, not just small, specific sites—and they’ve won: according to the courts, they do indeed have title to the full 1,750 square km territory.

But that’s not all. The Court also provided a working definition of Aboriginal title itself. This is really important, because up until now Canada has been operating without a definition, bizarre as that may seem.[1]

Now we have a definition: according to the Tsilhqot’in ruling, Aboriginal title includes “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”

Finally on an equal footing?

This has the potential to completely transform treaty negotiations.[2] You see, it’s been in Canada’s favour to not have title defined; this lack of definition (or “uncertainty” in government lingo) gives the Canadian government the upper hand in all treaty negotiations.

Here’s the scenario. Because rights and title are undefined, it’s too risky for Canada to enter into treaty with a First Nation (or so goes the argument). After all, how can we possibly enter into an agreement if we don’t know what the terms are? And what if those terms are defined at some future date, and we don’t like them?

Not to worry, the government has come up with a solution, and boy is it a crafty one. It goes like this: You, the First Nation, will agree to give up (or “extinguish”) all of your inherent rights and title, and together we’ll negotiate and define new rights and title. Then we can sign a treaty. We’ll even give you a cash incentive!

It’s quite the trade-off: give up the inherent rights and title your people have held since the beginning of time (“inherent” meaning not tied to, and thus not granted by, the Canadian state), in exchange for a limited set of define rights, and a government cheque. Under the Harper government, this approach has become even more draconian. They refuse to even sit down at the negotiating table unless a First Nation agrees to give up their inherent rights and title. Self-extinguishment is now a prerequisite.

Now that Canada has given itself an actual definition of Aboriginal title, however, Indigenous peoples will have more leverage in treaty negotiations: a definition of title means the government’s extinguishment argument no longer holds water.

In another blow to the Canadian government, the decision ruled that Canada can no longer access Indigenous (titled) land through mere consultation—now they must get actual consent. This, theoretically, could give Indigenous peoples a veto over whether or not industrial projects can go ahead on their territory. This is very troubling for Canada, which currently has difficulty seeing outside the lens of economic benefit. All eyes, of course, are now on the Northern Gateway pipeline, and the First Nations who claim title to the land along its path.

Loopholes, and continued colonization

As positive as this ruling is for Indigenous peoples who have outstanding land claims, it’s by no means a full endorsement of their rights and sovereignty. For there’s a caveat. According to the ruling, if the government cannot gain consent, they can still go ahead with an industrial project—providing that it is “justified by a compelling and substantial public purpose” and not in violation of section 35 of the Constitution, which protects Aboriginal and treaty rights.

That looks to me like a back door left wide open. Is the Northern Gateway pipeline a “justifiable” project that doesn’t trample on Aboriginal rights? I can think of at least one federal government who would say so.

And thus the Canadian court system, despite everything, remains deeply self-contradictory, and fundamentally colonial. On the one hand, Canada recognizes inherent Indigenous rights and title to their land. We also recognize that much of this land has never been ceded to the Dominion of Canada. This, arguably, is the definition of sovereignty. And yet we still presume the authority to define those rights and title for Indigenous people, and we still presume the authority to grant rights for ourselves over their land (a respect for sovereignty this is not).

Neither Canada nor Britain before it ever signed an agreement with the nations west of the Rocky Mountains to the Pacific Ocean—aside from a recent small handful of treaties, there’s been no agreement to use or share the territory, no agreement to occupy it. It is unceded land, and as far as I can tell, none of what we call British Columbia has ever legally been part of Canada. It belongs to nations other than Canada: First Nations.

The Canadian government—and our courts, apparently—disagree. But if we didn’t sign any treaties with First Nations in BC, then when and how did Canada gain sovereignty over that land? Was it through colonization? If so, then we stole it—which by all modern international standards would make us illegal occupiers. Or perhaps it was at some later date? If so, when? And by what legal process? The answer, of course, is that we’ve never gained sovereignty over it—not legally, anyhow.

How then to deal with issues concerning that territory? Folding First Nations issues under the umbrella of common law is obviously fraught, and will never be adequate. The problem is not necessarily (or not entirely) with the law itself, but rather with which kind of law we’re applying. We are dealing with First Nations through the framework of domestic law, as if they and their territories belong to Canada. But this is not the case. They are sovereign—we have our law, and they have theirs. We need to be interacting nation-to-nation. In other words, we need to be dealing on the level of international law.[3]

With every tree we log, with every home we build, with ever pipeline we lay—and with every Indigenous right we “recognize”—we continue to colonize.

If we really want to coexist on the land, legally, then there’s only one thing to do: we have to approach the First Peoples and seek to enter into treaties with them. We need to do so in good faith, and in recognition of their sovereign nationhood. And we need to prove ourselves worthy treaty partners by honouring those treaties that already exist.


[1] In 1997 a major court decision known as Delgamuukw ruled that Indigenous peoples had inherent rights and title to their lands (thus the need for consultation), but the courts refrained from defining what those rights and title actually were.

[2] Although the decision was on the Tsilhqot’in claim, the definition of title applies to all Indigenous nations with outstanding land claims. This is a significant number, covering a significant amount of land—most of BC, large swaths of Ontario and Quebec, and pretty much all of the Maritimes.

[3] It would also help if we expand our rigid understanding of the nation state, to conceive of shared jurisdiction—as well as our understanding of property, which can be collectively owned, or collectively used.

{further notes}

I have not read the opinion pieces that apparently bemoan the way in which this ruling will undermine or threaten our so-called liberal democracy (through granting distinctions before the law). The always insightful Chelsea Vowel, however, has read them, and you can read her excellent analysis on her blog, âpihtawikosisân, or on rabble.ca.

I’ve also just listened to an excellent interview with Chelsea Vowel on Indigenous Waves (starts at the 23:45 mark), which I highly recommend giving a listen to.

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