Greater control over a huge part of traditional territory

[A Tsilhqot'in Nation Win!]

BC Court of Appeal decision makes way for BC and Canada to continue legal battle with Tsilhqot'in Nation
February 2009
http://www.courts.gov.bc.ca/jdb-txt/CA/ ... CA0083.htm
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William v. British Columbia et al. : Challenges, Successes and Lessons Learned in the Context of Oral History
January 2009
http://www.woodwardandcompany.com/paper ... stbank.pdf
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Tsiilhqot'in National Government celebrates anniversary of William case
December 02, 2008 . . .
http://www.dogwoodinitiative.org/media- ... lliam-case
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Tsilhqot’in Nation v. British Columbia
Historic opinion on Aboriginal Rights and Title
2007
BC Supreme Court

"The Court is not able, in the context of these proceedings, to make a declaration of Tsilhqot’in Aboriginal Title. The Court offers the opinion that Tsilhqot’in Aboriginal title does exist inside and outside the Claim Area."

"Aboriginal title land is not “Crown land” as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s. 91(24) of the Constitution Act, 1967.

"The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title."

"Tsilhqot’in people have an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for
spiritual, ceremonial, and cultural uses. This right is inclusive of a right to capture and use horses for transportation and work."

"Tsilhqot’in people have an Aboriginal right to trade in skins and pelts as a means of securing a moderate livelihood."

"These rights have been continuous since pre-contact time which the Court determines was 1793."

"Land use planning and forestry activities have unjustifiably infringed Tsilhqot’in Aboriginal title and Tsilhqot’in Aboriginal rights."

http://www.courts.gov.bc.ca/Jdb-txt/SC/ ... SC1700.pdf
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"The court has given us greater control of our lands. From now on, nobody will come into our territory to log or mine or explore for oil and gas, without seeking our agreement," said Chief Roger William. "The court recognized that we have proven title in about half of the Claim Area - and from today we accept our renewed responsibility and powers of ownership of those lands."

Court ruling affirms Tsilhqot'in Nation has Aboriginal Title to a significant amount of land - 2,000 square kilometres of their traditional territory . . .

Another nail in the coffin for the BC Treaty Process

"Why would any First Nation be foolish enough to ratify any BCTC settlement agreement for less than 5% of their territory when the Xeni Gwet'in has achieved recognition of their Aboriginal Title to 50% of their territory?" Grand Chief Stewart Phillip, Union of BC Indian Chiefs
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November 30, 2007
First Nations of British Columbia Issue
Declaration Affirming Aboriginal Title
http://www.turtleisland.org/news/abtitlenov07.doc

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Tehaliwaskenhas - Bob Kennedy ( Onyota'a:ka / Oneida )
Copyright
Turtle Island Native Network
http://www.turtleisland.org

November 21, 2007

"Reconciliation is a process. It is in the interests of all Canadians that we begin to engage in this process at the earliest possible date so that an honourable settlement with Tsilhqot'in people can be achieved."

"The present Canadian community is now faced with the challenge of acknowledging past wrongs and of building a consensual and lasting reconciliation with Aboriginal people. Trials in a courtroom have the inevitable downside of producing winners and losers. My hope is that this judgment will shine new light on the path of reconciliation that lies ahead."

"This is not a usual judgment but, rather, part of a larger process of reconciliation between Tsilhqot'in people and the broader Canadian society."

Those are among the many words of Mr. Justice David Vickers in his massive-sized - 485 pages, landmark BC Supreme Court decision - recognizing Xeni Gwet'in First Nation rights.

"Land use planning and forestry activities have unjustifiably infringed Tsilhqot'in Aboriginal title and Tsilhqot'in Aboriginal rights," he stated. In brief, the court ruled the First Nation has Aboriginal Title to a significant amount of land - 2,000 square kilometres, in their traditional territory ( nearly half of the 440,000 hectares of lands that were in the Xeni Gwet'in claim ), a victory that means First Nations have greater control over their lands.

The Tsilhqot'in Nation v. British Columbia trial lasted more than 330 days over five years and cost millions of dollars.

It is very obvious the Court prefers to see negotiations rather than more of these types of legal challenges, "I have come to see the Court's role as one step in the process of reconciliation. For that reason, I have taken the opportunity to decide issues that did not need to be decided. For example, I have been unable to make a declaration of Tsilhqot'in Aboriginal title. However, I have expressed an opinion that the parties are free to use in the negotiations that must follow.

What is clear to me is that the impoverished view of Aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a 'postage stamp' approach to title, cannot be allowed to pervade and inhibit genuine negotiations.

A tract of land is not just a hunting blind or a favourite fishing hole. Individual sites such as hunting blinds and fishing holes are but a part of the land that has provided 'cultural security and continuity' to Tsilhqot'in people for better than two centuries. A tract of land is intended to describe land over which Indigenous people roamed on a regular basis - land that ultimately defined and sustained them as a people.

The recognition of the long-standing presence of Tsilhqot'in people in the Claim Area is a simple, straightforward acknowledgement of an historical fact. Given this basic recognition, how are the needs of a modern, rural, Indigenous people to be met? How can their contemporary needs and interests be balanced with the needs and interests of the broader society? That is the challenge that lies in the immediate future for Tsilhqot'in people, Canada and British Columbia."

"In an ideal world, the process of reconciliation would take place outside the adversarial milieu of a courtroom. This case demonstrates how the Court, confined by the issues raised in the pleadings and the jurisprudence on Aboriginal rights and title, is ill equipped to effect a reconciliation of competing interests. That must be reserved for a treaty negotiation process".

As a matter of fact, this court decision creates a further debate over the future of the current BC Treaty process because of this determination of Aboriginal Title to specific lands ( very large amounts of land ), without provincial power over their use, for such things as forestry, for example.

"Aboriginal title land is not 'Crown land'as defined by provincial forestry legislation. The provincial Forest Act does not apply to Aboriginal title land. The jurisdiction to legislate with respect to Aboriginal title land lies with the Federal government pursuant to s.91(24) of the Constitution Act, 1967. The Province has no jurisdiction to extinguish Aboriginal title and such title has not been extinguished by a conveyance of fee simple title."

The Tsilhqot'in claim began 17 years ago. Will Canada and BC now pay heed to this latest ruling and not launch legal action in higher places? Mr. Justice Vickers is hopeful, "it would be tragic if reconciliation with Tsilhqot'in people were postponed through seemingly endless appeals. The time to reach an honourable resolution and reconciliation is with us today".

"Tsilhqot'in people have survived despite centuries of colonization. The central question is whether Canadians can meet the challenges of decolonization. Important work lies ahead for the provincial and federal governments and Tsilhqot'in people. In that regard, there will have to be compromises on all sides if a just and lasting reconciliation is to be achieved."

BC Supreme Court decision in Tsilhqot'in Nation v. British Columbia
http://www.courts.gov.bc.ca/Jdb-txt/SC/ ... SC1700.pdf

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Decision Reached in Historical Land Claim Case:

Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700

Victoria, British Columbia, November 21, 2007 - After a courageous and epic struggle, a small Tsilhqot'in First Nation that took on the governments of Canada and British Columbia to protect their land and way of life has been victorious in Court. In a major precedent-setting decision, Justice David Vickers of the British Columbia Supreme Court ruled today that the Tsilhqot'in (Chilcotin) people have proven Aboriginal title to approximately 200,000 square hectares in and around the remote Nemiah Valley, south and west of Williams Lake, British Columbia. Although Justice Vickers declined to make a declaration of title based on technical issues, he found that the tests for evidence of title were met in almost half the area claimed.

The trial lasted 339 days during which 29 Tsilhqot’in witnesses gave evidence, many in their native language. 604 exhibits were entered with Exhibit 156 alone containing over 1,000 historical documents. The Judge received about 7,000 pages of written submissions from the lawyers on all sides.

"The court has given us greater control of our lands. From now on, nobody will come into our territory to log or mine or explore for oil and gas, without seeking our agreement," said the Plaintiff, Chief Roger William. "The court recognized that we have proven title in about half of the Claim Area - and from today we accept our renewed responsibility and powers of ownership of those lands."

Justice Vickers made a number of important findings that will impact future relations between the governments of Canada and British Columbia and First Nations, including:

1. The Tsilhqot’in people have aboriginal rights, including the right to trade furs to obtain a moderate livelihood, throughout the Claim Area.

2. British Columbia's Forest Act does not apply within Aboriginal title lands.

3. British Columbia has infringed the Aboriginal rights and title of the Tsilhqot’in people, and has no justification for doing so.

4. Canada’s Parliament has unacceptably denied and avoided its constitutional responsibility to protect Aboriginal lands and Aboriginal rights, pursuant to s. 91(24) of the Constitution.

5. British Columbia has apparently been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871.

Throughout much of Canada and the United States, the colonial governments made treaties with First Nations to purchase their lands. This did not happen in most of British Columbia. The government has continued to deny that B.C.'s indigenous people inherited the land that their grandparents owned.

MORE http://www.turtleisland.org/resources/zxeni07.pdf
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UBCIC Celebrates Xeni Gwet'in Court Victory
PRESS RELEASE FOR IMMEDIATE RELEASE November 21, 2007

(Coast Salish Territory/Vancouver) - "The Union of BC Indian Chiefs congratulates Xeni Gwet'in and Chief Roger William on their hard-earned court victory today. Today's judgment is another nail in the coffin for the BC Treaty Process. Clearly the process is dead," stated Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs.

"What the judgment confirms is what we already know, the full measure of Aboriginal Title is a legal reality in BC and BC has no jurisdiction on our lands," said Grand Chief Phillip. "

The astonishing inconsistencies between this decision and the two Final Agreements are absolutely monumental - why would any First Nation be foolish enough to ratify any BCTC settlement agreement for less than 5% of their territory when the Xeni Gwet'in has achieved recognition of their Aboriginal Title to 50% of their territory?"

The Xeni Gwet'in sought declaration of Tsilhqot'in Aboriginal rights throughout their territory. Chief Roger William, in his representative capacity on behalf of all Xeni Gwet'in and all Tsilhqot'in people, brought the suit forward in 1990.

The UBCIC fully support the highlights identified by Xeni Gwet'in's legal counsel of the decision such as:

* Rejection of the Crown's "impoverished" and "post-stamp size" interpretation of the law of aboriginal title;

* Judicial recognition of roughly 200,000 hectares of Tsilhqot'in aboriginal title. Judicial recognition of the Tsilhqot'in aboriginal right to hunt and trap for all relevant purposes, including trade for a moderate livelihood.

* Aboriginal title lands are constitutionally immune from the application of both British Columbia's Forest Act and Limitations Act, pursuant to s. 91(24) of Constitution Act, 1867.

* Section 88 of the Indian Act does not incorporate province laws of general application so as to interfere with aboriginal title lands.

* Timber on Aboriginal title lands is not "Crown timber" under British Columbia's Forest Act;

* Implementation of forestry land use planning on lands subject to Tsilhqot'in aboriginal title or aboriginal hunting/trapping rights is an infringement of these rights.

* Failure to gather baseline date on species diversity and abundance in an area slated for industrial activity is fatal to Crown attempts to justification such conduct.

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FOR MORE INFORMATION CONTACT:
Grand Chief Stewart Phillip (250) 490-5314

[Tsilhqot'in decision huge]

Tsilhqot’in Court Victory Supports Jules and Wilson Case on Aboriginal Title and Rights

VERNON, BC, PRESS RELEASE--(Dec. 5, 2007) - The First Nation's victory in their Aboriginal title and rights claim in the Supreme Court's decision in Tsilhqot'in v. British Columbia provides strong support for the Okanagan Indian Band's aboriginal title and rights defence to enforcement proceedings under the Forest Act.

The Jules and Wilson litigation arose when the Okanagan Indian Band and Westbank First Nation of the Okanagan Nation and the Adams Lake, Neskonlith and Splat'sin Bands of the Shuswap (Secwepemc) Nation Tribal Council commenced logging in their traditional territories in an effort to provide housing for their membership. The Tribal Councils had authorized the logging.

Shortly after the logging activities took place, the Ministry of Forests ordered the Bands to stop because they did not have a provincial permit and obtained an injunction through two actions (Jules and Wilson) preventing them from doing anymore logging. In their defence, the Bands challenged the constitutionality of the provincial forestry legislation, based on the Okanagan Nation's aboriginal title and rights to harvest timber in the Browns Creek Watershed and Secwepemc title and rights to the Chase Creek/Harper Lake Watershed.

The Court in Tsilhqot'in v. British Columbia has now found that provincial laws, including the Forest Act, do not apply to Aboriginal title lands, and recognized that "the Province has skated on thin constitutional ice for over a century…. [and] has been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871." "This case supports the Okanagan Indian Band's position that the laws of the Okanagan Nation, not the Province's forestry legislation, applies over our lands" said Chief Fabian Alexis "and that the Province cannot continue to alienate our lands and resources without our consent".

The Supreme Court's decision in Tsilhqot'in v. British Columbia Court's decision is also a thorough rejection of the positions the province relies on in litigation to deny title and rights. The Court dismissed the province's argument that Aboriginal title could only be proven for small, "postage stamp" sized sites and instead found that Tsilhqot'in Aboriginal title exists over approximately 200,000 hectares. Chief Alexis stated "as the Province well knows, the evidence of Okanagan aboriginal title in our case is even stronger".

"The Province has tried again and again to derail and delay our case in order to keep the aboriginal title issue from being decided so that it can continue to develop land and exploit resources" stated Okanagan Indian Band Chief Fabian Alexis. "the Court's decision in Tsilhqot'in v. British Columbia makes it clear that the Province should now get on with making systemic changes to recognize Okanagan aboriginal title to our territories, including the Browns Creek Watersheds, rather than delaying and wasting money disputing its existence and trying to enforce what it knows is invalid provincial legislation through the Jules and Wilson litigation."

For more information, please contact
Fabian Alexis, Chief, Okanagan Indian Band
Primary Phone: 250-542-4328

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UBCIC Open Letter to BC Government: Xeni Gwet’in Must Be Acted Upon
PRESS RELEASE - FOR IMMEDIATE RELEASE December 4, 2007

We are all here to stay. We agree to a new government-to-government relationship based on respect, recognition and accommodation of aboriginal title and rights.

These words, around which the Government of British Columbia and First Nations agreed in 2005 to build a New Relationship, are the essential foundation of a positive transformation in the lives of Aboriginal peoples and communities, and in relations between the Aboriginal and non-Aboriginal inhabitants of this Province.

From the time B.C. became a province of Canada, the Province has operated on the principle of denial – denial of who we are as distinct peoples, and of our unique cultures, spiritualities, and methods of social organization. Successive governments have denied, and continue to deny, that First Nations peoples were here first, that we occupied and used our lands and resources, and that we hold Title and Rights throughout the Province. The New Relationship must end, forever and absolutely, this heinous tradition of denial. Recognition of Title and Rights is the bedrock for a respectful, just, and equal, relationship, through which reconciliation can take place.

Meaningful outcomes have simply not materialized from the New Relationship. While the rhetoric of recognition is spoken at the highest level of government, the status quo of denial is implemented on the ground. If this does not change soon, the New Relationship will completely collapse, and in its place, we will have more conflict, uncertainty, and disharmony. The urgency for real action and change could not be greater.

On Wednesday the British Columbia Supreme Court, in a historic decision of singular importance, made it crystal clear that the era of denial of Aboriginal Title and Rights must end. In Xeni Gwet’in the Court found that that the Tsilhqot’in Nation had established their Title to 200,000 hectares of their Traditional Territory. On Aboriginal Title lands, the Province exercises no statutory and decision-making jurisdiction – decision-making authority rests with the First Nation. In reaching this conclusion, the Court rejected and condemned the Province’s practice of denial, and its impoverished and “postage stamp” approach to Aboriginal Title. Further, the Court clarified that ever since joining Confederation the Province has been unlawfully occupying Aboriginal lands and taking Aboriginal resources. Compensation is owed for these past and ongoing wrongs.

What Xeni Gwet’in demands is immediate action towards recognition-based reconciliation. Embarrassingly, and sadly predictably, the Province’s initial response to the decision has been the dinosaur of denial. The Province’s wish to dismiss the judgment as a non-binding opinion is unwise and unhelpful. After the Supreme Court of Canada decisions in Delgamuukw (1997) and Haida (2004), the Province insisted that nothing had changed. They were wrong. To play that broken record again would be to end the New Relationship, and the promise it held.

Premier Gordon Campbell is quoted as saying the decision makes clear that the way to move forward is through negotiations. This is what the Province’s indigenous peoples have been saying for generations. But negotiations must be based on recognition of Aboriginal Title, and must lead to reconciliation. The Tsilhqot’in rejected the treaty process, because of its denial-based principles, and went to court and won. The existing treaty process is based on ideas and principles from an era that our contemporary legal and moral values simply cannot tolerate. Negotiations within and without the treaty process must now proceed on the basis of recognition.

Two years ago I worked closely with Premier Campbell in forming the New Relationship. It was a leap of faith for him, and for me; and I respect him greatly for the choices made. But that leap was a leap of vision. Now we are compelled to act. It is time to walk the New Relationship walk, and in so doing, create a British Columbia of promise, prosperity, and reconciliation for all. If we fail to do that, future generations will look back on this moment in history, bewildered by the opportunities missed, and dismayed by the hardships we wrought on those who had to come after us.

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FOR MORE INFORMATION CONTACT:
Grand Chief Stewart Phillip (250) 490-5314

The UBCIC is a NGO in Special Consultative Status with the Economic and Social Council of the United Nations

[Tsilhqot'in vs AcidMining]

For Immediate Release:
January 6, 2009

FIRST NATIONS SUMMIT SUPPORTIVE OF TSILHQOT’IN NATION EFFORTS TO PROTECT FISH LAKE FROM DESTRUCTION BY MINING PROJECT

Coast Salish Territory (Vancouver, BC) – The First Nations Summit is fully supportive of the writ filed in BC Supreme Court today by Chief Marilyn Baptiste of the Xeni Gwet’in First Nations on behalf of the Tsilhquot’in Nation in an effort to block the destruction of Teztan Biny (Fish Lake) by Taseko Mining Ltd’s Prosperity mining project. The writ, claiming an Aboriginal right to fish for the Tsilhqot’in Nation, is an important step in blocking the unwarranted and willful destruction of a natural lake which is a critical piece of the Tsilhqot’in Nations traditional territory.

“It is unacceptable for government and industry to ignore the Tsilhqot’in peoples Title and Rights to this valuable natural resource within their traditional territory”, said Grand Chief Edward John.

“Natural habitats such as Teztan Biny are an integral part of First Nations culture in this province and we will stand together to fight any government policy or industry initiative which allows a natural lake to be destroyed for nothing more than the financial gain of a few shareholders”, added Chief John.

A copy of the Tsilhqot’in National Government media release is attached for background information.
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The First Nations Summit speaks on behalf of First Nations involved in treaty negotiations in British Columbia. Further background information on the Summit may be found at www.fns.bc.ca

For further information:
Colin Braker
Communications Director
First Nations Summit
Phone: (o) 604-926-9903 (c) 604-328-4094

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Tsilhqot'in Nation Goes to Court to Protect Lake from Acid Mining

Tsihlqot'in Vows to Protect Teztan Biny (Fish Lake) from Prosperity Mine

Williams Lake, BC, PRESS RELEASE, Jan.06, 2009

The Tsilhqot'in Nation filed a writ in B.C. Supreme Court today claiming an Aboriginal right to fish. The claim, if successful, will prevent Taseko Mines Ltd. from developing its proposed Prosperity Project, 125 km southwest of Williams Lake. The proposed mine pit, and the construction of the mine tailings and waste rock disposal areas, would completely destroy Teztan Biny (Fish Lake).

The court action, brought by Chief Marilyn Baptiste of the Xeni Gwet'in First Nation on behalf of the Tsilhqot'in Nation, is seeking a declaration of an Aboriginal right to fish in Teztan Biny, a pristine mountain lake in the heart of Tsilhqot'in territory. For the Tsilhqot'in, the lake is sacred and its destruction unthinkable. The court action aims to permanently stop Taseko from using this natural lake as a disposal site for its toxic mine tailings, a controversial mining practice in Canada that threatens to leave a legacy of environmental contamination that will last for millennia.

The proposed Prosperity Project would also require a 125 km power transmission line and the construction of a 'replacement' lake, something Taseko calls a Fish Compensation Plan. The project is currently entering federal and provincial environmental review processes and is set to go into development as early as 2010, if approved. The federal Department of Fisheries and Oceans has previously opposed the destruction of the lake because of its 'no net loss' to fish habitat policy.

Taseko's 2007 Prosperity Feasibility Study states that the "property hosts proven and probable reserves of 487 million tonnes grading 0.43 gpt Au and 0.22% Cu at a C$5.25 net smelter return (NSR/t) per tonne pit-rim cutoff". The current value of those metals at today's prices would be over $10 billion. The Feasibility Study speaks of a pre-production capital cost of C$807 million, with an operating cost of C$2.9 billion over the life of the mine.

On November 20, 2007 the Tsilhqot'in won a historic victory of an aboriginal right to hunt, trap and trade to over 400,000 hectares of their territory. Marilyn Baptiste, Chief of the Xeni Gwet'in Tsilhqot'in states: "A lot of our members and Elders can't understand why we need to go to court again. We already went to court for 339 days and won. The governments took their best shot and lost. Our members are asking how many times we need to win in court to have our rights respected. However, if it takes another court case, we'll do it: whatever it takes to protect our Territory."

When asked about the legal foundation of the court action, lawyer Jack Woodward stated "The provincial government simply has no constitutional authority to extinguish Aboriginal fishing rights."

If the court action is successful, the Prosperity Project, as currently proposed, will be barred from proceeding.
- END RELEASE - 06/01/2009

For further information:
Joe Alphonse, Director of Government Services
Tsilhqot'in National Government,
#253 4th Avenue North, Williams Lake, BC V2G-4T4.
Phone: (250) 392-3918 Fax: (250) 398-5798 Cell: (250) 302-1514;
Chief Marilyn Baptiste - Xeni Gwet'in First Nations Government,
General Delivery, Nemiah Valley, BC V0L 1X0. Phone: (250) 394 7023 Ext. 202
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More about this action by Tsilhqot'in Nation . . .
http://www.waterkeeper.ca/2009/01/06/na ... osed-mine/