Tsilhqot'in Ruling Rocks BC; Aftershocks To Come

If a tremor shakes BC’s forests and no one talks about it, was there an earthquake? We are going to find out when the shock waves of the groundbreaking decision in BC Supreme Court Tsilhqot'in title case begin to register on British Columbia’s economic, political and environmental Richter scales…and in the financial markets.

Usually news of an earthquake captures headlines and leads the television news no matter where it occurs in the world. If the quake is big, or close to home, we are inundated with weeks of analysis detailing how prepared the government was and how the dealt with the aftermath. Not so with the major quake from the BC courts last November.  When the BC Supreme Court decided the Tsilhqot'in title case last fall, the media paid little attention. The government remained silent, at least publicly; privately insiders say government is scared that the fault lines surrounding title issues are spreading a across BC.

Despite the low profile, the Tsilhqot'in ruling has cracked the foundation of how lands are managed in BC. While the true magnitude of the case hasn’t been felt yet, it could trigger a series of seismic event which force BC down the path to become global model for indigenous rights and sustainability. It could be the most important court decision to occur in BC in our lifetimes.

So what did the court say?

Supreme Court Justice Vickers ruled that the Tsilhqot'in had proven title to ~2,000 square kilometres in the Brittany Triangle region of the Cariboo-Chilcotin. He also recognized the Tsilhqot’in Aboriginal right to hunt, trap and trade animal skins and pelts over an additional 2,000 square kilometres in surrounding lands.  This is the first time a Canadian Court has ruled Aboriginal title exists to a large tract of land a First Nation claimed belonged to them.

In the short-term the courts the most explosive finding is that the provincial Forest Act does not apply to Aboriginal title lands at all for constitutional reasons.  The aftershocks of this raise uncertainties about the applicability of all resource licences and laws on contested First Nations lands throughout BC.

After a 339 day trial the court validated that aboriginal title includes the right to use the land, to choose how land is used, and to get the benefits from resources on those lands.  To comply with this new reality all BC resource laws will have to be re-written to incorporate First Nations new power.

The court also dramatically increased the risks of ignoring Aboriginal title and continuing with business-as-usual resource extraction policies. Justice Vickers ruled that “[t]he resources on Aboriginal title land [2,000 square km] belong to the Tsilhqot’in people and the unjustified removal of these resources would be a matter for appropriate compensation.”  Imagine the value of all the trees, salmon, minerals, water etc from the Brittany Triangle, and other First Nations lands, over the last 150 years.

Some pundits and government representatives have tried to diminish the magnitude of the case, pointing to the fact that for technical reasons the Court declined to grant the Tsilhqot’in their requested declaration of title. The Tsilhqot’in are exploring mechanisms to correct the technical defect to get a binding ruling of title, or resolve the dispute through negotiations. However, until another case or an appeal overrides it, the government is required to comply with the groundbreaking principles enunciated by Justice Vickers.

Unfortunately, BC once again seems to be disregarding directions from the courts. earlier this month the Tsilhqot’in threatened further lawsuits after the BC government failed to meet a court ordered deadline for an offer in their land claims negotiations.

Huge implications

Justice Vickers’ ruling fundamentally shakes economic, political and environmental relations in British Columbia. Collectively his findings create major cracks in the BC government’s unilateral power to grant licences to log, mine, drill or to set the rules for how company’s must operate on lands First Nations have strong interests in. Without a significant overhaul of BC’s resource laws and policies, third party interests will remain especially vulnerable to shock. 

Given that now BC does not have jurisdiction over Aboriginal title lands; resource ministries must now consider the probable existence of Aboriginal title when it contemplates decisions which have the potential to impact on potential title lands.  Because ministries have historically disregarded these issues, logging and other resource companies may not be able to rely upon the validity of government approvals either to log and market lumber, or to transfer their tenures.   Practically speaking, where First Nations have strong evidence of title, there is now a corresponding strong probability that the Province has no property interest or jurisdiction. 

Money talks

Government may ignore the courts, but not the financial markets. While the BC government will undoubtedly seek ways to circumvent the courts, the uncertainty created by this ruling creates new opportunities directly intervene with investors to expose the risks of operating on unceded lands in BC. Divulging this heightened uncertainty to key players in the financial markets should quickly compel meaningful engagement from both government and companies. It will be interesting to read how BC companies operating on unceded First Nations lands disclose these new risks (as is legally required) in their annual reports this spring. 

Recently Dogwood Initiative has succeeded in catalyzing First Nations self determination efforts by leveraging the uncertainties created by previous court cases. This technique has helped stop plans to fast-track coalbed methane, mines, coal-fired power plants and oil pipelines.

Dogwood Initiative, in addition to highlighting undisclosed legal risks, has begun translating information about the vulnerability of contested resource right to various players in the financial markets to encourage meaningful negotiations. The Tsilhqot’in shockwave makes this approach even more powerful.

Dogwood Initiative is pioneering new approaches to integrate financial pressure strategies into local self-determination campaigns. This new approach that has the potential to transform power relations in BC - and Canada - and develop new models for a more just, equitable, democratic and sustainable future for the developing world.

How can title disputes be resolved?

The Tsilhqot’in decision guarantees that the treaty process, as currently structured, is dead. No First Nations will be willing to accept the existing terms of reference which limit title lands to only 3 to 7 percent what is claimed when the courts could grant them 100 percent.

For both First Nations and the government, the best way forward would be to begin negotiating details of a consent-based shared decision making process related to resource issues, like that recently completed with the Haida. The failure to actively seek new co-jurisdictional solutions to achieve certainty may slightly prolong status quo logging, mining and oil and gas operations, but in the long run will be costly.

Ultimately the Tsilhqot’in case (and others working their way through various courts) will force BC to renegotiate new rules for making decisions about BC land and resources. Who controls approvals, who sets the rules, who gets the benefits will all have to change to recognize the reality of aboriginal title. Herein lies the opportunity to make BC a global model for a more just, equitable, and sustainable future.  If First Nations use their growing power over resources forcefully - and wisely - a sustainable BC is possible.