Treaty vs. title: First Nations' new Tsilhqot'in choice

There are 59 First Nations in British Columbia involved in negotiations with the provincial and federal governments that are overseen by the B.C. Treaty Commission.

The Tsilhqot'in National Government which won a landmark declaration of aboriginal land titlefrom the Supreme Court of Canada last month was not one of them.

• First Nations, B.C. cabinet to discuss land title ruling Sept. 11
• Tsilhqot'in First Nation ruling means revisiting the James Bay Treaty, says lawyer
• First Nations 'ecstatic' over historic Supreme Court ruling

"For us we felt no good faith on the part of the government in the B.C. treaty process or any negotiations. The offers that the governments provide are, for the record, abysmal," saidXeniGwet'inChief Roger William.

It was Williamwho brought the case on behalf of his village one of six in theTsilhqot'inNation seeking recognition of aboriginal title over 1,750 square kilometres of land in central B.C. on the west side of the Fraser River.

On the east side of the Fraser, directly across from the Tsilhqot'in, is the Esk'etemc First Nation. Esk'etemc signed on to the B.C. treaty process in 1994. They are at stage four in the six-stage process.

"Individual communities are going to have to decide how they proceed, whether it is through a negotiated treaty or litigation. Esk'etemc will consider our options and be prepared to go to court again if necessary to prove title to our lands," Esk'etemc Chief Charlene Belleau wrote in an email to the CBC.

Treaty or title: not an either-or

The question of whether or not to continue with government negotiations is, no doubt, weighing heavily on the minds of B.C.'s First Nations leadership. But for Grand Chief Edward John it's not an either-or scenario.

"As First Nations, we went to the table based on our title. The governments came to the table with their own mandate which was not to recognize title. So, it led to stalemates," explained the head of the First Nations Summit, an umbrella group for the 59 BC First Nations involved in land claims negotiations with the government.

John rankles at the phrase "treaty process." These are negotiations and they aren't going well.

"Simply because you get involved in negotiations, it doesn't mean you capitulate to the other party's mandate. That's far from the truth," he said.

For John, the Tsilhqot'in decision just strengthens his members' negotiating position negotiations for land.

"What was called the land question as of [June 26 - the Tsilhqot'in decision], there is no question about the land anymore," argued John.

Kent McNeil wrote the book on aboriginal title and a number of learned articles to boot. His book, Common Law Aboriginal Title, was one of the texts cited in the Supreme Court's decision.

He would agree with John that there is no question about land anymore if you're Tsilhqot'in.

Must establish borders on the ground

"Each First Nation is going to have to establish where its aboriginal title is on the ground," McNeil pointed out. So giving up on negotiations and going to court has risks.

"The outcome in court is, yes, they are, no doubt, going to be able to prove they have aboriginal title. But the extent will depend on the evidence," he explained. In the Tsilhqot'in case, the original trial judge took five years to outline the borders of their title claim. And that involved visits to the land and talking with elders for oral historical evidence among other sources.

"So it's not necessarily a better option. They've got a much stronger hand than they had before in the negotiations" and, said McNeil, that's because governments can no longer argue that aboriginals only have title to the postage stamp-sized areas that were their villages.

The days of Nisga'a-style treaties, where the First Nation only gets eight per cent of its claimed land, are over.

"The province is going to have to modify its negotiating position quite substantially," said McNeil.

Illegal status quo

Lawyer Louise Mandell puts it more bluntly. The governments' long history of denial will have to end.

"The Crown has held the illegal status quo in place by a theory of aboriginal title that it was just limited to small spots," explained Mandell, who has worked on First Nations justice cases in B.C. for decades. She also represented interveners in the Tsilhqot'in case.

Mandell is waiting to see how the governments put the SCC's orders into practice.

"I would find it quite fascinating to hear how those who need to make changes are planning to do that," she said.

That process is under way now, but it has only just begun.

In an interview last Thursday, Grand Chief Edward John revealed to the CBC that B.C.'s First Nations Leadership Council met with the province's senior bureaucrats. They will be meeting with Premier Christy Clark and her cabinet on Sept. 11.

But if the governments involved in the negotiating process want to avoid dozens of land title court cases, they should consider these final words from Chief Belleau:

"For Esk'etemc, we expect a new expedited mandate from the federal and provincial governments to negotiate in good faith. Both levels of government cannot continue to exploit our lands and resources while they drag their feet in negotiations. We will not tolerate this."