Aboriginal title ruling reignites fights over resources in BC

VANCOUVER — In the two weeks after the Supreme Court of Canada’s landmark granting of aboriginal title over a broad swath of land in central B.C. to the Tsilhqot’in Nation, several new court cases and a re-energized battle over the proposed New Prosperity mine upped the stakes even more in the fight over who controls Canada’s lands and resources.

On June 26 the Supreme Court granted the Tsilhqot’in aboriginal title over 1,750 sq. km of land near Williams Lake — the first time First Nations have been granted such a title in Canada. The ruling also laid out the rules for determining when aboriginal title is deserved and what it entails.

One thing title clearly entails is control over resources. This means any company wanting to develop a project on untreatied lands in Canada has to consider First Nations’ title claims. Those with strong cases for title have to be treated as though they have title, which means they have the power to allow or prevent resource development on their lands.

In short, the ruling changed the requirement from consult to consent. It’s a major ruling, and it quickly created waves.

The first wave came from a project that has been causing strife for years: the proposed New Prosperity open-pit copper–gold mine, also near Williams Lake. In responding to the ruling, would-be mine developer Taseko Mines (TSX: TKO; NYSE-MKT: TGB) looked at the flip side: by defining the area where the Tsilhqot’in do have title, Taseko said the court also clarified where the band does not have title. New Prosperity is not within the Tsilhqot’in’s title grounds.

The market agreed, to some extent. Taseko’s share price gained 15% in the two weeks after the ruling, rising from $2.41 to $2.77.

The Tsilhqot’in, however, disagree.

“The New Prosperity project was long dead before this decision was released,” the Tsilhqot’in National Government said in a statement. “Contrary to Taseko’s recent press statements, nothing about last week’s judgment changes the fatal findings for its fundamentally flawed project. The times have changed, but Taseko is clinging to the past.”

A few days later, the Tsilhqot’in went a step further, announcing “an emphasized focus on securing meaningful economic benefits for the Esidlagh First Nation (one of six Tsilhqot’in communities) from the Gibraltar mine, which has been operating for over 25 years without any formal benefit, sharing with the community that is closest to the copper-molybdenum mine.”

Taseko also owns the Gibraltar mine and says it is in negotiations over economic benefits agreements with nearby bands.

Other First Nations are also using the Tsilhqot’in decision to support their anti-development battles. One of the first to follow in the Tsilhqot’in’s footsteps were the Gitxsan, though to be fair, the Gitxsan prepared the Tsilhqot’in for success 17 years ago.

That was when the Supreme Court of Canada decided the case of Delgamuukw, which saw Earl Muldoe sue the province of B.C. on behalf of the house of Delgamuukw and other Gitxsan houses for the ownership of 58,000 sq. km of northwest B.C. The Supreme Court explicitly declined to rule on the question of title, saying it could not because the court had not decreed how to determine aboriginal title.

However, by acknowledging the need to answer that question and by not assuming the Crown had control, the decision was widely considered a victory for First Nations. Indeed, in ruling on the Tsilhqot’in case the Supreme Court leaned on Delgamuukw many times.

However, for the Gitxsan it was a pseudo victory that failed to generate any real impacts. Now, with the Tsilhqot’in case having finally answered the question their case laid bare all those years ago, the Gitxsan are once again claiming control over their territory.

The hereditary chiefs of the Gitxsan First Nations served eviction notices to CN Rail, logging companies and sport fisherman to leave their lands. Chief negotiator Gwaans (Beverly Clifton Percival) says the companies have until Aug. 4 to stop operations and leave 33,000 sq. km of Gitxsan land along the Skeena River.

Clifton Percival says timber sales, fishing licences and rail shipments can continue after the Crown has obtained consent from their chiefs. Otherwise, because the Crown didn’t consult them before allowing the commercial activities, the companies are trespassing.

“They’re saying, ‘We always thought we won and now, seventeen years later, here is proof,’”  lawyer and aboriginal land claims expert Bill Gallagher said, author of the book Resource Rulers. “They say they are prepared to sit down and negotiate, but the government has to come and ask their consent before things move forward. If this were any other litigant in any other area who had shaped the law but then had to wait seventeen years for acknowledgement — a tenant-landlord or a government, or whoever — they would be doing the same thing.”

The Tsilhqot’in ruling also shone a glaring light on the questionable path forward for the proposed Northern Gateway pipeline, which  would cross the traditional and claimed territories of a dozen B.C. First Nations, most of whom oppose the project.

One band taking the battle to court is the Gitxaala First Nation plan to file suit in the Federal Court of Appeal challenging Ottawa’s recent approval of the pipeline. The Gitxaala claim rights and title to islands off B.C.’s north coast, something the group says Ottawa failed to consider in approving the project.

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

The Tahltan First Nation might also provide a test case of the implications of the Tsilhqot’in ruling, as the Tahltan are preparing a case for the right to prevent Fortune Minerals (TSX: FT; US-OTC: FTMDF) from developing an open-pit coal mine at the Arctos Anthracite project.

“We have had enough of those that choose to try to use our lands and resources without listening to us, and last week’s decision affirms the tools we have to do something about it,” president of the Tahltan Central Council Annita McPhee said. “Yet without Tahltan consent, and against the clear wishes our people have expressed, Fortune Minerals continues to press ahead with its plans to build the Arctos Anthracite open-pit coal mine.”

Arctos is on Mount Klappen, an area where the Tahltan already spent years fighting a proposed Shell Canada natural gas project. The First Nation considers the area sacred: it is a traditional hunting ground, has significant cultural value and feeds three large salmon-bearing rivers.

“Our Elders did not get arrested fighting to protect the area in the past so that Fortune could dig up our mountain and damage this sacred area,” McPhee said.

After strong protests by the Tahltan, Fortune suspended exploration work at Arctos last September. But the company is slowly advancing its environmental permit application and has not abandoned the project.

Now the Tahltan are preparing a legal claim to win their own recognition of aboriginal title. If they do, they will earn the right to decide whether A
rctos is allowed or not.

Finally, the Kwikwetlem First Nation are claiming title to all lands associated with the now-closed Riverview Hospital in Metro Vancouver, along with other areas it considers traditional territory.

“The Kwikwetlam First Nation have thousands of years of traditions tied to the Riverview lands, including the use and occupation of the land itself,” the band said in a statement. The band went on to say it wishes to make clear that is expects to be granted ownership of the lands.