(Adds reaction, possible implications for Northern Gateway
pipeline and other projects)
By Randall Palmer
OTTAWA, June 26 Aboriginals in British Columbia
can stake a broad claim to traditional territories due to a
landmark Supreme Court of Canada decision that also raises new
questions about prospects for the contentious Northern Gateway
pipeline and other resource projects.
Thursday's ruling marks the first time the Supreme Court has
recognized aboriginal title to a specific piece of land. It is
expected to have widespread application in the resource-rich
Pacific Coast province, much of which is subject to unresolved
aboriginal land claims.
The case involved a claim to 1,750 sq km (676 sq miles) of
land in central British Columbia. The court ruled that the
Tsilhqot'in Nation, a group of six native bands, is entitled to
prevent forestry on this tract.
The decision overturned an appeals court ruling that had
restricted the Tsilhqot'in to having title only in the small
areas of the land where they had proven continuous and intensive
While it still could take years to establish aboriginal
title in other areas, the Supreme Court warned that if title is
established, then existing development projects might have to be
killed off if proper care is not exercised by their proponents.
"For example, if the (government) begins a project without
consent prior to aboriginal title being established, it may be
required to cancel the project upon establishment of the title
if continuation of the project would be unjustifiably
infringing," the court said in its 8-0 decision.
EYE ON NORTHERN GATEWAY
Enbridge Inc's Northern Gateway pipeline project,
the highest-profile and most controversial resource proposal in
British Columbia, would carry 525,000 barrels per day of crude
to the Pacific from the Alberta oil sands. The federal
government approved the project on June 17 over the strenuous
objection of several British Columbia native
The pipeline route is well to the north of the specific
tract involved in Thursday's case, but the coastal group Haida
Nation said the Supreme Court's language on reconsideration of
approved projects could enable it to bring the project to a
"If we're successful in our (land) claim, then certainly the
project approvals would have to be rescinded," Terry-Lynn
Williams-Davidson, the Haida's general counsel, told an Ottawa
The Supreme Court said governments could allow some resource
projects to go ahead, even if they infringe on aboriginal title,
in cases where there is "a compelling and substantial public
It made such approvals conditional, however. For instance,
the impact must be proportional: the benefits of development
projects must not be outweighed by adverse effects on
aboriginals. And infringements cannot proceed if they would
deprive aboriginals in the future of the benefit of the land.
"They're probably back on their heels," Grand Chief Stewart
Phillip of the Union of B.C. Chiefs said of the proponents of
Northern Gateway and similar projects. "Today is a game
DISPUTE OVER LOGGING
Chief Joe Alphonse, the Tsilhqot'in tribal chairman, said in
a statement the case was about "regaining our independence, to
be able to govern our own nation and rely on the natural
resources of our land."
The dispute over the Tsilhqot'in land began in 1983 when
British Columbia granted Carrier Lumber Ltd a license to cut
trees in part of the territory at issue. The aboriginals
objected and blockaded a bridge the company was upgrading.
Twelve years of court wrangling over aboriginal title followed.
"The nature of aboriginal title is that it confers on the
group that holds it the exclusive right to decide how the land
is used and the right to benefit from those uses," the court
University of British Columbia aboriginal law specialist
Gordon Christie said the ruling would have "enormous
implications" for resource development. He added the caveat that
the decision does not apply to private property but only
so-called "Crown lands" controlled by the government.
Tom Isaac, head of the aboriginal law group at law firm
Osler, noted that while the ruling may strengthen opponents of
resource projects, the process of establishing aboriginal title
is still not simple.
"Obviously this is very significant and it will probably
embolden those advocating for these rights, but it's a legal
system and there is a huge burden on First Nations (aboriginals)
in order to prove the title, so this is not an easy thing to
prove," he said.
Rather than fighting over projects through litigation, the
court made clear that negotiated agreements are still possible.
"As the courts have repeatedly pointed out, negotiation is
preferable. When that happens we all win," British Columbia
Justice Minister Suzanne Anton told reporters.
The name of the case is Tsilhqot'in Nation vs British
Columbia, 2014 SCC 44.
(Additional reporting by Nicole Mordant and Julie Gordon in
Toronto, Scott Haggett in Calgary, Euan Rocha in Toronto and Rod
Nickel in Winnipeg; Editing by Jeffrey Benkoe, Peter Galloway
and Jeffrey Hodgson)