VANCOUVER – The British Columbia and federal governments have been ordered to pay a portion of the legal costs incurred by a First Nation that won a partial land claim victory last year — the latest development in a two-decade old battle that has since moved onto the Supreme Court of Canada.
The B.C. Court of Appeal issued a ruling last June that granted the Tsilhqot’in First Nation broad rights to hunt, trap and trade in what it considers its traditional land, but the decision also rejected the Tsilhqot’in’s claim to aboriginal title.
The case is now the subject of an appeal at the Supreme Court of Canada, which has yet to decide whether to hear the case, but in the meantime the B.C. Court of Appeal awarded the First Nation legal costs for the appeal.
The case dates back to the early 1990s, when the Tsilhqot’in first began using the courts and a blockade to stop logging operations in the area, setting off a complex legal odyssey that has bounced between courts and spawned appeals and cross-appeals.
The B.C. Supreme Court earlier ordered the two provincial and federal governments to pay the Tsilhqot’in’s legal bills, in advance, for the trial in that court. The Appeal Court’s latest decision, issued Thursday, adds to that bill, though the running total wasn’t immediately clear.
A lawyer for the First Nation, James Nelson, said in an interview that a formula outlined in provincial legislation will determine the exact amounts to be paid for the appeal, but that hasn’t been worked out yet.
The Tsilhqot’in, whose traditional territory is near Williams Lake, B.C., is a collection of six bands, including the Xeni Gwet’in band, which is at the heart of the case.
A forestry company attempted to secure access to two areas where the Xeni Gwet’in claimed aboriginal title.
The Tsilhqot’in staged a blockade in May of 1992 to prevent forestry work. The blockade ended with a promise from then-premier Mike Harcourt to prevent further logging without the Xeni Gwet’in’s consent.
The B.C. government turned much of the area into a provincial park in 1994, but the rest of the land remains in dispute.
A trial began in November 2002 and continued for nearly five years, hearing evidence that the Tsilhqot’in have been in the area for more than 250 years.
But the trial also heard the Tsilhqot’in were “semi-nomadic” and had few permanent encampments.
The B.C. Supreme Court ruled in 2007 that the Tsilhqot’in did not have aboriginal title over the entire area, but the court also said the Tsilhqot’in had rights to hunt and to trade skins and pelts to support a “moderate livelihood.”
The Tsilhqot’in and both governments each filed appeals of various aspects of that ruling, but the Appeal Court dismissed all three appeals in its decision last year.
The Tsilhqot’in is among First Nations in B.C. that have declined to participate in the province’s ongoing treaty process. Unlike other provinces, most of B.C. does not have treaties with its First Nations.
It’s not clear when the Supreme Court of Canada will issue a decision on whether it will hear the case, or, if it does, when that might happen.
The Tsilhqot’in have a long history opposing development in their traditional land.
The First Nation is among the strongest critics of a proposal by Taseko Mines Ltd. to develop its New Prosperity mine site near Williams Lake.
The $1.1-billion mine was approved by the B.C. government, rejected in a federal government environmental review in 2010 and is now back before the environmental review process.
In 2011, the Tsilhqot’in First Nation won an injunction to stop work on the project, but that injunction was later vacated by a court order.
In 1864, a road-building crew was killed while attempting to construct a road through Tsilhqot’in territory. It sparked the so-called Tsilhqot’in War, a conflict that ended with the execution of several Tsilhqot’in chiefs, who were publicly hanged in what is now Quesnel, B.C.
Thursday, January 3, 2013