OTTAWA — A room full of surprised veteran B.C. Aboriginal leaders erupted in “cheers and tears” after the Supreme Court of Canada, in the most important aboriginal rights case in the country’s history, ruled that the Tsilhqot’in First Nation has title 1,750 square kilometres of land in south central B.C. The landmark ruling will provide a clear and less onerous roadmap for all unresolved land claims in B.C. and throughout Canada involving First Nations seeking to negotiate modern treaties – or to fight for their land rights in court. The unanimous ruling from all eight judges was written by Chief Justice Beverley McLachlin. “Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it,” she found. However, the ruling also made clear that economic development on title land can continue – either with consent, or if there is no consent when the Crown has proven that the project has a “compelling and substantial” public interest. The decision was immediately described as by aboriginal leaders as the mark of an epic shift in Canada-First Nations relations, and a signal to Prime Minister Stephen Harper and provincial premiers to take treaty negotiations more seriously. “This will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country where there is unextingushed Aboriginal title,” said Jody Wilson-Raybould, regional B.C. chief of the Assembly of First Nations. “This has to be the wake-up call for governments, both the provincial and federal governments, and we look to Mr. Harper to actually see this as the fundamental impetus to sit down at the table and truly and meaningfully move towards reconciliation.” “The decision is an opportunity to truly settle, once and for all, the land question in BC -- where our Nations are not simply making claims to the Crown under an outdated federal policy but where there must be true reconciliation based on recognition and where the outcome of negotiations is certain. Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, suggested thatall economic projects on traditional Aboriginal territories will now require “consent” as well as consultation before they proceed. That, in turn, will mean problems for the two major proposals to build oilsands pipelines through B.C. on territory claimed by various First Nations. “We are in an entirely different ballgame,” Phillip, told a Vancouver news conference. Pipeline proponents Enbridge and Kinder Morgan are “probably back on their heels,” said Phillip, who told journalists that the room full of First Nation leaders exploded into “cheers and tears” after learning of the judgement. The federal government reacted cautiously, saying it is reviewing the ruling before considering its “next steps” in its relationship with Aboriginal peoples. “The decision by the Supreme Court of Canada on the appeal filed in the Roger William case involves complex and significant legal issues concerning the nature of Aboriginal title in the Province of British Columbia,” Aboriginal Affairs Minister Bernard Valcourt said in a statement.

He noted that since 2006 four treaties have been concluded in B.C., while others are at advanced stages of negotiations. “Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians.” “We are committed to continuing this progress and ensuring an effective process for negotiating treaties.” The ruling largely accepted the broad interpretation of what title means, as laid out by the late Justice David Vickers in a 2007 B.C. Supreme Court decision, and rejected the far more narrow view delivered by the B.C. Court of Appeal in 2012. Business groups have warned of “havoc” if the 2007 ruling prevailed, while First Nations said endorsement of the 2012 view would have made a mockery of the notion of Aboriginal title. To be known for generations to come as the William case, after plaintiff Roger William, the decision confirmed for the first time any where in Canada a title claim. But it also declared that provincial governments – and not Ottawa, as some business groups had feared - will retain regulatory authority over land obtained aboriginal people through court cases or land claim negotiations. In B.C.’s case, due to a technicality, the provincial forests act will have to be amended in order to maintain that authority. Future economic activity on title lands, involving anything from mines and logging to pipelines and hydroelectric projects, will require the “consent” of title-holding First Nations. But the court also said the Crown can justify “infringement” of that title, when consent is absent, under specific circumstances. “Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group,” the chief justice stated in her ruling. The wording is crucial to the future of projects like Enbridge’s proposed Northern Gateway oilsands pipeline, which runs through claimed – though not established as being title lands in court or through negotiations - traditional territory of numerous First Nations. Legal analysts have said a ruling such as Thursday’s would significantly strengthen the hand of First Nations in B.C. or Alberta who want to file a land claim on territory along the Gateway route, and hope to obtain an injunction preventing construction while that claim is heard. “We take this time to join hands and celebrate a new relationship with Canada,” said the plaintiff, Chief Roger William of the Xeni Gwet’in people, who are one of six Indian Act bands that are part of the Tsilhqot’in First Nation. Chief Joe Alphonse, tribal chairman of the Tsilhqot’in National Government, urged governments and industry to work with his people. “This decision will bring much needed certainty for First Nations, government and industry,” he said in a statement. “This case is about us regaining our independence – to be able to govern our own Nation and rely on the natural resources of our land. We are ready to move forward in this new relationship with government and industry. That work starts today”

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, called the decision “absolutely amazing!” in the joint statement with the Tsilhqot’in leaders. Chief Joe Alphonse, Tl’etinqox government and Tsilhqot’in tribal chairman, gave an impassioned speech following the decision, saying that the trial had been very difficult, adding that once in court the Tsilqot’in people were compared to a pack of wild dogs, and often described as nomadic. “We were never nomadic. We lived on our territory with a purpose… A nomadic person walks around aimlessly, starving, looking for bugs to eat,” he said. “We didn’t fight in court to be a pain to B.C. We didn’t fight this case to separate from Canada. We fought in this case to get recognized and be treated as equals in a meaningful way." The judgment, because it was dealing with a semi-nomadic people who only seasonally occupied many parts of the claimed territory, established a less onerous test to establish title. The 2012 ruling declared that title required proof of intensive, site-specific use that was sufficient, exclusive and had some semblance of continuity from the time British sovereignty was established – in B.C. it was 1846 - to the present day. But Thursday’s ruling recognized a more flexible test than that spelled out by the three B.C. appellate judges. It also explained in greater detail than in past cases how judges and negotiators should in the future marry the differing perspectives of Aboriginal and common laws. “Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.” The court ruling shows the federal government should set up a “protocol” for First Nations consultation on future resource development projects, so that everyone is aware of the proper duty to consult and obtain aboriginal consent, said Jean Crowder, federal Opposition NDP Aboriginal Affairs critic. “It would be a way better process if you had that protocol in place and First Nations were at the table right from the outset so that you didn’t get to the permitting and approval stage only to be told, ‘Oops we need to go back now and do the consultation that if we had of done three years ago we might not be in this spot,'” said Crowder. “Companies then understand exactly what they have to do." Crowder said she thinks the high court ruling calls into question the Enbridge Northern Gateway pipeline project, which already has approval by the federal cabinet, subject to 209 conditions. “You would wonder in light of this decision, they might have to reconsider that approval,” Crowder said. One of the lawyers who worked on the Tsilhqot'in case, David Rosenberg, of Woodward and Company Lawyers, said this is an important precedent with far-reaching implications for other First Nations.