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If you had a plugged nickel or several hundred millions of dollars, among the worst places to invest that money would be across the parts of British Columbia affected by last week’s Supreme Court ruling.
It was difficult enough before to get the necessary aboriginal agreement to develop Crown land, or what had been thought to be Crown land. Now, those difficulties have grown immensely with the decision in the Tsilhqot’in case.
After the previous (and very vague) Delgamuukw ruling (1997), it was thought that aboriginal title applied in areas where groups had resided, and that their claims diminished in strength the farther they got from those settled areas. There was a kind of sliding scale of rights, from something approximating a veto to the need for consultation. This was how the B.C. Court of Appeal saw matters.
The Supreme Court, however, has ruled that title applies to all the areas nomadic or semi-nomadic aboriginals moved over before white settlement. “A culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground aboriginal title,” the court said.
Which is another way of saying that aboriginals throughout B.C. (and according to their immediate reaction, of aboriginals across Canada) now have a veto over development in any area over which they establish title. Moreover, they have almost a veto over territory they claim, even if the claim has not been found legally valid.
In B.C., it had been hoped that modern-day treaties would reconcile the interests of aboriginals and the Crown. That process, regrettably, has been a flop. Only a handful of agreements have been reached. Some aboriginal groups refused to enter any treaty negotiations because they do not recognize Canada’s sovereignty. Others lack the capacity to negotiate. Others have become discouraged, perhaps feeling that the government has not been committed, or perhaps feeling that by waiting, the Supreme Court and other courts will do much more for them than any government will.
Indeed, if the strategy is to wait on legal rulings, it’s proven brilliantly wise. Aboriginals tend to play the long game, and by playing it, they have seen their bargaining power rise and rise again, courtesy of the courts.
This line of reasoning presumes that aboriginals do indeed want to bargain – that is, negotiate agreements that would permit development on what the court has now ruled is “their” land, to be reconciled with the sovereignty of the Crown.
For the rest of this column, click here: http://www.theglobeandmail.com/globe-debate/aboriginals-play-the-long-game-but-who-wins/article19396824/#dashboard/follows/