Supreme Court hands Tsilhqot’in major victory in historic ruling


APTN National News
OTTAWA–The Supreme Court of Canada has granted a declaration of Aboriginal title to the Tsilhqot’in over 1,750 square kilometres of territory in a historic ruling handed down Thursday.

This is the first time the high court has ever granted a declaration of Aboriginal title to a First Nation. The ruling also acknowledges Indigenous nations can claim occupancy and control over vast swaths of land beyond specific settlement sites, provides more clarity on Aboriginal title and sets out the parameters for government “incursion” into land under Aboriginal title.

The ruling also hands a final victory to the Tsilhqot’in Nation, which encompasses six communities with a population of about 3,000 people, over British Columbia in a long-running battle, which included blockades, over logging permits in their claimed territory.

“I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in,” said the unanimous ruling, written by Chief Justice Beverley McLachlin. “I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorization.”

British Columbia and Ottawa both opposed the Tsilhqot’in claim to title.

The Supreme Court blasted the B.C. Court of Appeal, which had overturned a lower court ruling on what territory the Tsilhqot’in could claim under Aboriginal title. The high court found the Court of Appeal’s definition of occupancy too narrow.

“There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the court of appeal held,” said the ruling. “Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title.”

The high court said that Aboriginal title could be declared over territory “over which the group exercised effective control at the time of assertion of European sovereignty.”

Tsilhqot’in Nation Tribal Chair Joe Alphonse called the ruling “amazing” and said it marked the beginning of a “new Canada.”

Alphonse said the ruling also sent a message to Canada’s political leaders.

“It sends a strong message to all provincial leaders and Stephen Harper to deal with us in an honourable and respectful way,” he said.

Tribes Disappointed By State Appeal In Culvert Case

– Northwest Indian Fisheries Commission

Treaty Indian tribes in western Washington are disappointed to learn that the state has filed an appeal in the culvert case ruling.

Federal District Court Judge Ricardo Martinez ruled on March 29 that the state must fix fish-blocking culverts under its roads in western Washington because they violate tribal treaty-reserved fishing rights. The court found that more than 1,500 state culverts deny salmon access to hundreds of miles of good habitat in western Washington, harming salmon at every stage in their life cycle.

“But instead of implementing the ruling as a win-win for the salmon and everyone who lives here, the state has chosen to appeal the case in a further attempt to ignore tribal treaty rights,” Frank said.

As part of his ruling, Martinez issued a permanent injunction against the state’s continued operation of fish-blocking culverts under state roads in western Washington. The injunction was necessary, he ruled, because of the slow pace of state corrections, which has led to an increase in the number of barrier culverts in the past three years. At the current pace, the state would never complete repairs, Judge Martinez said, because more culverts were becoming barriers to salmon than were being fixed.

The state and its Department of Transportation (DOT) were given 17 years to complete repairs. Other state agencies were already planning to have their blocking culverts corrected within the next three years.

Culvert repair cost estimates being provided by the state are higher than the actual repair costs presented in court, Martinez ruled. The state claims that the average cost to replace a state DOT culvert is $2.3 million. But the evidence showed the actual cost of DOT culverts built to the best fish passage standards has been about $658,000. Repairs will be funded through the state’s separate transportation budget and will not come at the expense of education or other social services.

“It’s also important to understand that state law already requires that culverts allow fish passage. The culvert case ruling directs the state to do nothing more than what is already required,” Frank said.

“For decades the state has tried to ignore tribal treaty-reserved rights, even when that means ignoring the best interests of the resource and its citizens,” Frank said. “But the federal courts have consistently upheld our treaty rights.”