B.C. First Nation evicts CN Rail, loggers, fishermen

In light of the Supreme Court decision recognizing aboriginal land title, Gitxaala First Nation flexes eviction muscles

VANCOUVER – British Columbia First Nations are wasting no time in enforcing their claim on traditional lands in light of a landmark Supreme Court of Canada decision recognizing aboriginal land title.

The hereditary chiefs of the Gitxsan First Nations served notice Thursday to CN Rail, logging companies and sport fishermen to leave their territory along the Skeena River in a dispute with the federal and provincial governments over treaty talks.

And the Gitxaala First Nation, with territory on islands off the North Coast, announced plan to file a lawsuit in the Federal Court of Appeal on Friday challenging Ottawa’s recent approval of the Northern Gateway pipeline from Alberta.

The Kwikwetlem First Nation also added its voice to the growing list, claiming title to all lands associated with now-closed Riverview Hospital in Metro Vancouver along with other areas of its traditional territory.

They cite the recent high court ruling in Tsilhqot’in v. British Columbia.

“It’s given us a bit of confidence that things are going to be going our way,” said Clarence Innis, acting chief of the Gitxaala. “I think that is a very strong message to Canada … not to ignore First Nations any more but to consult.”

The court application argues that the federal Conservative cabinet did not consider the Gitxaala’s aboriginal rights and title in approving the oil pipeline proposed by Calgary-based Enbridge (TSX:ENB). The Tsilhqot’in decision bolsters their case, said Rosanne Kyle, the band’s lawyer.

“The Northern Gateway project is going to be the first case where the implications of Tsilhqot’in will crystallize,” she said. “The court has provided a lot more clarity for everyone involved, including government, as to what needs to be done to achieve reconciliation.”

About 250 kilometres northeast of the Gitxaala, the Gitxsan have given companies operating on their land until Aug. 4 to leave the 33,000 square kilometres of their territory along the Skeena River.

Because the band was not consulted by government, the companies the governments licensed are trespassing, said Gwaans Bev Clifton Percival, chief negotiator for the Gitxsan.

“The Supreme Court has come down with yet another ruling that advances our right and title,” she said. “They (government) have to abide by the laws. We’re prepared to negotiate.”

It was Gitxsan hereditary chief Delgamuukw whose 1997 legal victory recognized aboriginal title to unceded land in B.C.

The band has tried since then to negotiate with the Crown but hasn’t made any progress, Clifton Percival said. A short-term forestry agreement with the province expired in 2011 and there’s been none since, she said.

Then in 2012, lands awarded to the Gitxsan in an earlier court ruling were included in a treaty agreement-in-principle with the neighbouring Kitsumkalum and Kitselas nations, she said.

“B.C. has been silent yet they want to have all this activity on Gitxsan land, so we need to get their attention and this is the only way the chiefs saw forward,” Clifton Percival said.

CN Rail did not return a call for comment, but issued a brief email statement.

“We have long standing, co-operative relationships with Gitxsan hereditary chiefs and we are currently in discussion with them about this matter,” said Mark Hallman, director of communications.

B.C. Minister of Aboriginal Relations and Reconciliation John Rustad was travelling and unavailable for an interview. In an emailed statement, Rustad said the Liberal government takes the courts’ direction on consultation very seriously.

In the Gitxsan case, the ministry has been working with the communities to try and resolve the territorial dispute, he said.

“We are continuing to work in partnership with Kitselas, Kitsumkalum and other B.C. First Nations to secure long-term treaties that provide economic benefit, security and certainty on the land for all British Columbians,” Rustad said.

The Kwikwetlem First Nation issued its claim of aboriginal title interests in a news release.

“The Kwikwetlem First Nation have thousands of years of traditions tied to the Riverview Lands, including the use and occupation of the land itself.”

The First Nation said it wishes to make it clear that it expects to become the owner of the Riverview Lands and lead the future development of these lands.

The high court decision is the first time aboriginal title has been recognized in Canada. The court recognized the Tsilhqot’in’s title to over 1,700 square kilometres of land in the B.C. Interior.

A report released Thursday by the Fraser Institute warned that the ruling may encourage more lawsuits.

It’s a decision that will be felt throughout Canada, said the analysis by the right-leaning think tank based in Vancouver.

In the short term, the ruling will impact treaty negotiations and development in the westernmost province, where there are few historic or modern treaties and where 200 plus aboriginal bands have overlapping claims accounting for every square metre of land and then some.

“Over the longer term, it will result in an environment of uncertainty for all current and future economic development projects that may end up being recognized as on aboriginal title lands,” wrote analyst Ravina Bains.




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B.C. First Nation evicts CN Rail, loggers, fishermen

  1. From G&M;

    “It does not appear that First Nations can pledge their aboriginal title lands for security for money required for economic development,” Mr. Austin said. “But I am very confident that this problem can be worked out.”

    Joan Young, a partner with McMillan LLP law firm in Vancouver, is less convinced that the recent court decision will affect financing arrangements, noting that the Supreme Court of Canada found governments can infringe on aboriginal title if they meet certain conditions.

    That could lessen the likelihood of such title being used as financial leverage.

    “I don’t see a bank relying on that [aboriginal title] in terms of advancing funds to a First Nation,” Ms. Young said. “If you’re thinking with your banker’s hat on, you would ask, ‘Do I give money to somebody on the basis of the interest they have in this land when another party can still go in there and use it for a purpose that the person I have lent money to may not agree with?’

    “Probably not,” she said.

  2. I’m not sure why anyone is concerned about native land being used in the manner the Supreme Court says…..that’s the same for everyone.

    Macleans just ran a long story on a farmer….given a land grant ‘in perpetuity’….having his land expropriated for a JTF2 base to be built, 5 years down the road!

    And years ago many old farms and land grants were taken by the govt for Mirabel airport…a project that never worked out.

    There is no private land in Canada. It is all subject to expropriation by the govt….even when the projects are stupid.

    It’s never stopped anyone from getting a mortgage or using the equity in the land.

  3. Justice La Forest;

    aboriginal title is based on the continued occupation and use of the land as part of the aboriginal peoples’ traditional way of life. This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts…. [T]he aboriginal right of occupancy is further characterized by two principal features. First, this sui generis interest in the land is personal in that it is generally inalienable except to the Crown. Second, in dealing with this interest, the Crown is subject to a fiduciary obligation to treat aboriginal peoples fairly…. [A]ny description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.”

      • This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts

        • Sui generis means unusual, unique…in this case no, it’s not the same as routine real estate dealings in the ROC.

          Nothing exotic.

  4. From TC;

    There have been only four treaties signed in B.C. in about 20 years, and First Nations have criticized the process as expensive, bureaucratic and flawed.

    Still, treaties provide much more certainty over self-governance, legal issues and on-the-ground management than a land title claim, said Thomas Isaac, who leads the aboriginal law group for law firm Osler, Hoskin & Harcourt LLP and is a former chief treaty negotiator for the B.C. government.

    “The good thing about a treaty is that you know what you’ve signed for all parties involved,” he said. “It’s not actually clear what aboriginal title will translate into, at least on Day 1.”

    • Tellya what it WON’T translate into, Billy Bob….white folk getting it back.

      Get over it, and move on.

  5. “However, once Aboriginal title has been proven, the SCC held that given the exclusive rights conferred to an Aboriginal group by Aboriginal title, “governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” in order to proceed with development. If the Aboriginal group does not consent, the government’s only recourse is to establish that the proposed incursion on the land is justified under section 35 of the Constitution Act, 1982, on the basis of the broader public good. In order to do so, the Crown must demonstrate that:

    it discharged its procedural duty to consult and accommodate;
    its actions were backed by a compelling and substantial objective; and
    the governmental action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.

    The SCC adopted the observations of Lamer C.J. in Delgamuukw regarding the types of compelling and substantive legislative objectives that might justify the infringement of Aboriginal title, namely: “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims…” The SCC noted that justification must be considered from both the Aboriginal perspective as well as the broader public perspective, consistent with the goal of reconciliation.”

    • Mmmm pine borer, massive forest fire….that sort of thing. Same as elsewhere.

  6. If the first nations want to develop the land and use the revenue to better the living conditions of their people….I’m all for it.

    If however, they want to simply hold title to the land, and continue to have the rest of us pay their way in perpetuity……then we have a problem.

    • So….if your back yard is just sitting there growing grass, and not hosting a high rise…..we have a problem?

      Their land James…..they can do what they want with it. Not everywhere needs a shopping mall.

    • From Nisga’a Treaty;

      Consumer Taxation

      In accordance with the Treaty, relief from consumption taxes — in the form of remission orders — expired, on June 1, 2008 for all persons within Nisga’a Lands and for Nisga’a citizens anywhere in Canada. Like other governments, NLG has the authority to levy taxes within its jurisdiction to provide services and enhance the quality of life for its citizens.

      Property Taxation

      Representatives of NLG and British Columbia have met to discuss delegation of British Columbia’s property tax powers to NLG. The parties continue to work toward an agreement.

      Income Taxation

      As with consumer and property tax, Nisga’a citizens will no longer be exempt from income tax effective January 1, 2013. British Columbia and NLG are negotiating a personal income tax revenue sharing agreement. The Parties expect that in 2013, British Columbia will receive 50 percent of British Columbia personal income tax paid by Nisga’a Citizens who live on Nisga’a Lands.

  7. A First Nation in Northern Ontario has lost its fight to force the provincial government to obtain federal approval before permitting logging on its traditional lands.

    The decision helps to clarify the jurisdiction of the two levels of government over resource extraction in territory covered by treaties.

  8. In a unanimous ruling released Friday, the Supreme Court dismissed appeal the Grassy Narrows First Nation’s appeal of an Ontario court decision that said the province has the right to use treaty land for mining and forestry.

    “Ontario has the power to take up lands in the Keewatin area under Treaty 3 without federal approval or supervision,” Chief Justice Beverly McLachlin wrote in the ruling.

    The decision marks a rare defeat for First Nations that have turned to the courts to resolve disputes with governments and industry. It comes on the heels of a landmark decision in which the Supreme Court recognized the existence of aboriginal title over a vast swath of the B.C. Interior.

    • I have no idea why you think you have to repeat the news…..it was clear enough the first time.

      The province is in charge…..not the feds. Good. Now we can move on.

      • I’ll post what I damn well please…………………..nobody takes orders from the likes of you.

      • Hey, Boob’s found something that he’s good at!
        Hopefully, recent legislation won’t curtail Boob’s opportunity to find gainful employment in the spam industry.

        • Billy Bob and his banjo sound track spends all his time sulking on the web. Life just isn’t working out to suit him. LOL

  9. Conservatives happier than Liberals;

    George F. Will wrote that one reason for this was because conservatives don’t put their faith in government:

    … they accept that happiness is a function of fending for oneself. They believe that happiness is an activity — it is inseparable from the pursuit of happiness.

    The right to pursue happiness is the essential right that government exists to protect. Liberals, taking their bearings, whether they know it or not, from President Franklin Roosevelt’s 1936 State of the Union address, think the attainment of happiness itself, understood in terms of security and material well-being, is an entitlement that government has created and can deliver.

    He concluded:

    Liberalism is a complicated and exacting, not to say grim and scolding, creed. And not one conducive to happiness.

    Two liberal “researchers” from NY University,” John Jost and Jaime Napier, conducted a study to find out why conservatives were happier, and they’re findings were published in May, 2008. Warner Todd Huston fisked the study at Newsbusters:

    Even though Jeanna Bryner of livescience.com puts a happy face on the story with her headline, the text following clearly casts conservatives in the worst possible light. Her very first line provides the context of the “research” upon which she reports.

    Individuals with conservative ideologies are happier than liberal-leaners, and new research pinpoints the reason: Conservatives rationalize social and economic inequalities.

    In other words, conservatives are happy because they ignore the “economic inequalities” of their fellow citizens and don’t worry themselves over other’s troubles. They just don’t care about other people. This is exactly what this “research” claims.

    The researchers explain right wing rationalization, this way:

    To justify economic inequalities, a person could support the idea of meritocracy, in which people supposedly move up their economic status in society based on hard work and good performance. In that way, one’s social class attainment, whether upper, middle or lower, would be perceived as totally fair and justified.

    Note the word, “supposedly”. Like “in the real world” this doesn’t happen. People really can’t prosper through hard work? Really?
    Napier and Jost, themselves are ………nuts.

    • I agree…Cons simply don’t care about others….only themselves, in spite of claiming to be christians…. and they are frightened of any kind of risk.

      Matthew 25:14-30

      They can’t be trusted to think about the future….all they see is the past.

    • Like it or not Billy Bob…you’re going to have to pay up for global warming. Denial doesn’t work.

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