Just some clarifications regarding Tom Fletcher’s column on the Tsilhqot’in decision:
1. Federal and provincial authority may vary with the strength of an aboriginal title claim, as Fletcher contends, in the sense that the obligation to consult and accommodate is proportional to the strength of the claim. But this is not so once aboriginal title has been proved in court (as the Tsilhqot’in have done).
Once such title is established it is no longer a matter of a “claim” and the aboriginal owners must consent to any development proposal respecting their land – unless the government supporting such a development meets the stringent constitutional test for limiting aboriginal rights and title in the absence of consent.
2. A finding of aboriginal title does not necessarily “lock in” communal ownership.
Just as treaty First Nations may agree to convert land to fee simple title, aboriginal title holders may agree to surrender land to the federal Crown on the condition that it be re-conveyed to them for the purpose of conversion to fee simple.
I suspect that obtaining such agreement is no easier in the former scenario that the latter, but it may be.
3. The Tsilhqot’in had a long history of keeping others out, and were the only First Nation that was hostile even to the fur trade. But they did not fight a war in the 1860s to defend their territory from a “wave of gold seekers.” They expelled everyone. In 1864, after being threatened by the foreman of a crew building a wagon road through their territory – he had warned darkly of bringing back the small pox that had killed at least one third of their population two years earlier – they killed nearly all the crew and then killed or expelled all white settlers from their territory.
Hamar Foster, QC, professor of law, University of Victoria