Alec Dan, of the Musqueam First Nation, looks on outside the British Columbia Court of Appeal in Vancouver, B.C., on Monday November 15, 2010.Darryl Dyck/The Globe and Mail
A fight over aboriginal title and rights that began when natives blockaded a logging road in the Chilcotin region of British Columbia 20 years ago appears headed for the Supreme Court of Canada.
Expressing a "bittersweet" mix of satisfaction and dismay with a ruling the B.C. Court of Appeal handed down on Wednesday, native leaders said they have no choice but to take their legal battle to the highest court in the land.
To do otherwise, they said, would condemn first nations to live in poverty without control over the land they have used for centuries.
The Tsilhqot'in First Nation, which represents six bands in central B.C., won partial victories when both the Supreme Court of B.C. and the Court of Appeal confirmed their traditional rights to use the land.
But the decisions failed to give the Tsilhqot'in what they really want – a clear declaration that they hold aboriginal title over more than 4,000 square kilometres of land west of Williams Lake.
"It's been a long road," Chief Joe Alphonse, tribal chairman of the Tsilhqot'in National Government, said at a press conference after the Appeal Court released its ruling.
He said the Tsilhqot'in have support from native groups nationally and provincially, and there is wide agreement the case must go to the Supreme Court of Canada.
Chief Alphonse said the decades-old fight has cost "a lot – you are talking millions," but the matter is too important to drop.
"We're not here to shy away, we're not here to back down," he said.
"We will not stand down from this fight," agreed Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs.
In its ruling, the B.C. Court of Appeal upheld key aspects of a landmark 2007 decision in which the late B.C. Supreme Court Justice David Vickers found the Tsilhqot'in have rights to the lands they use and that logging unfairly infringes on those rights.
He declined to make a declaration of title over the disputed land, but said: "The court offers the opinion that Tsilhqot'in aboriginal title does exist inside and outside the claim area."
The Appeal Court, however, rejected some of Mr. Justice Vickers' legal reasoning, specifically challenging his notion that aboriginal claims to title can be established simply by proving native people travelled across the land. It said broad use of territory isn't good enough, but rather intense use of specific sites must be shown.
The case began when Roger William, then chief of the Xeni Gwet'in band, brought an action on behalf of the larger Tsilhqot'in First Nation in an attempt to stop several forest companies from logging in the Nemiah Valley.
Band members had blocked roads, claiming that logging was damaging their rights to hunt, trap, trade and capture wild horses.
Chief Phillip welcomed the affirmation of rights, but said the decision by the Appeal Court to narrow how title can be established is a blow to first nations.
"I'm deeply disappointed at the title aspects of this decision. In my view, it's incredibly racist," he said, because it does not reflect the aboriginal view that land is an inextricably connected web.
Grand Chief Edward John of the First Nations Summit also rejected the court's views on title, saying the "postage stamp approach" to land claims isn't acceptable. He said that would give first nations title to specific village and fishing sites, but not the land that connected them.
Mark Hume