Friday, July 11, 2014

History of aboriginal title... the other shoe?

No forest? No animals, no hunting
I haven't had time to note the historic potential of the Supreme Court's recent Tsilqot'in decision, and now here's another one worth watching: the Grassy Narrows decision to be handed down later today.

Tsilqot'in covered lands never affected by treaty, and the SCC gave what you would think would be a "Well, Duh" decision: if it wasn't given up, it's still theirs.

Grassy Narrows represents the rest of the country: the vast territories where there are treaties in place. The First Nations plaintiffs (actually the appellants at the SCC, I think, but they began as plaintiffs) want the court to acknowledge that when a treaty confirms a permanent right to hunt and fish, well, they have a permanent right to hunt and fish, and so logging and other activities that make hunting and fishing impossible are not permitted without consent.

Consent can be negotiated. Consent can be priced. It has been impressive how much of the reaction to the Tsilqot'in decision has been on the lines of, "Well, if the law doesn't allow us to just steal Indian land anymore, okay, we'll just adjust our business plans a little and negotiate payment for it from now on." Like this one. Pretty reassuring.

It will take more cases, no doubt, but if Grassy Narrows goes the right way today, and it turns out that treaties really are treaties, binding on us as well as on the First Nations, the significance could be profound. I mean profoundly good.  Once the First Nations of Canada own and control and can draw benefit from all the land that is already theirs, it becomes possible to imagine aboriginal poverty on reserves going away. I try not to get too Pollyanna on this, but it's that big, I would guess.

Update:  Well, that was fast.  Barely posted that when the news came in.  7-0 against Grassy Narrows.

I don't like criticizing judges. They know stuff I don't and deal with issues I don't. Apparently much of this was particularly linked to division of powers questions between federal and provincial responsibility that have been pretty much settled law since the 1880s.  The larger issue will come up again.

Image: CBC News
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