Wednesday, November 21, 2007

Decision Day in the Nemiah Valley

Justice David Vickers will be bringing down his ruling today in the Xeni Gwet'in title case. This case lays claim to a fairly large area of land around Chilko Lake and its watershed on befalf of the Tsilhqot'in (Chilcotin)people.

It will be a mammoth judgement filled with details, technical language and subtle analysis but there will a few things to watch out for to get a sense of who really won the case:

First, does Justice Vickers award any title to the Tsilhqot'in? This will be a clear defeat for the Province which for years now has hung its hat on the idea that there is no aboriginal title in BC or if there is, itis confined to the reserves.

Second, does any area subject to title extend outside of the Nemiah Valley itself (where most of the Xeni Gwet'in reserves are)? If title is just found in the Nemiah Valley and not in places like the Brittany Triangle, Henry's Crossing, Eagle Lake and the Potato Mountains, then the decision is basically a draw -- there is aboriginal title but there is not huge amounts of it.

Third, does the area subject to aboriginal title include 'hunting grounds' or is it limited to more settled areas (as the judge describes them). If Justice Vickers makes any substantial award of hunting grounds to the Tsilhqot'in then the case should be characterizes as a rout for the Province.

Fourth, does Justice Vickers rule in favour of the Tsilhqot'in on the "Division of Powers" issue (this might be called things like the "Land Reserved for the Indians issue". the "Section 91(24)/Section 88 Issue" or the "Jurisdiction Issue". This is the real wild card in this case -- even if the Tsilhqot'in win less title than they hope for (which will be a huge disappointment for them) a win on this issue would be huge and would be a complete and utter disaster for the Province's legal team. For all intents and purposes this would mean that the Province is essentially removed from having any real control over the Tsilhqot'in's lands without the consent and cooperation of Ottawa. This is an issue for constitutional law junkies but it is the sleeper issue in this case.

Fifth, if the Province does have any real jurisdiction, how does Justice Vickers deal with the issue of infringement. The Provinces love the cases that same 'aboriginal rights are not absolute' and they are not. The question is though, does the Province, subject to having to chit-chat with the aboriginal people first, have the right to go ahead do mostly what it was going to do anyway? This is where Justice Vickers could strike a balance: aboriginal title could be across broad areas but be paper thin when push comes to shove or aboriginal title could over smaller areas but surrounded by very high fences.

It will be in this last issue that I think much of the really difficult reading is going to be found. This is the area where the freedom of the Crown to govern and the expectation of all aboriginal people that their rights mean something and deserve protection will be balanced and interwoven. This area will likely read as much likel a policy piece on constitutional reform as a legal treatise and will provide endless scope of room for discussion.

Whatever the outcome -- it will be an interesting few days for everyone.

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1 comment:

beth said...

I am a 2nd year law ctudent from the universtiy of saskatchewan and am doign a Moot on overlap issues and have Justice Vickers decision for William as a part of my paper. That is how i came across your blog when I googled the information. I am also from Newfoundland and am thinking about articling in Victoria. Do you have any advice on where to apply or what to keeo in mind?
thank you,
beth hardy