The path forward for industry has been improved by the Supreme Court of Canada's William Case (otherwise known as the Ts'ilhqot'in Case), according to senior government officials for the province of B.C.
This despite the backlash towards the provincial Ministry of Environment issuing an extension on the permit held by mining company Taseko on the contentious New Prosperity gold/copper mine proposal in the Cariboo backcountry where the six Ts'ilhqot'in nations reside.
Leaders from the Tsilhqot'in National Government blasted the announcement of renewal as insensitive to their land-use wishes while environment minister Mary Polak gave assurances it was simply a matter of course for legalities and meant nothing to the ultimate fate of the controversial mine proposal.
Chief Joe Alphonse, tribal chairman of the Tsilhqot'in National Government and chief of the Tl'etinqox First Nation said in response to the permit extension, "No matter what, this project is dead. The Tsilhqot'in are the only First Nation in Canada that have proven aboriginal title in the courts. The extension of this certificate should be illegal. Denying this extension would have shown respect in regards to our title negotiations with the province."
Minister of Energy and Mines Bill Bennett told The Citizen "there are no plans or talks" within the provincial government to revisit the New Prosperity project, it was in the hands of the federal government.
The provincial minister responsible for aboriginal relations, Prince George's John Rustad, said despite the New Prosperity issue, the relationship with the 200-plus First Nations within B.C. was moving forward. Since the William case was handed down almost every major sector now has the message that their first order of business is crossing the First Nations threshold before proceeding on to other permits.
At the top of his list was ongoing discussions with the Ts'ilhqot'in group of nations in the Cariboo, apart from the now dormant New Prosperity discussion.
"The Ts'ilhqot'in told me just the other day 'we don't want to have a treaty; we aren't interested in that concept.' The idea they proposed was a peace accord between nations. Peace accord. That term doesn't scare me at all. We have to be agile about the thinking we could be doing together, the whole range of possible ways we could come to agreements and bring our relationships closer together," said Rustad. "Treaty, as a process, is still a set of helpful tools to set up agreements but we should be looking at all the steps we can take, like, for the Ts'ilhqot'in, a peace accord."
Like the Supreme Court decision in the William matter, which set a precedent for the nation that untreatied First Nations did in fact have uninterrupted title to lands they traditionally used, not just the formal boundaries around their base of cultural operations, what Rustad suggests - a set of negotiation points, not a lone and overarching us-versus-them approach - is aimed at bringing more and more certainty to a cloudy scene.
"Certainty: it's an odd word," he said. "Even if you have a treaty, it's not a document that provides all the answers. When a First Nation signs a treaty agreement with the province and the feds, it is a marriage not a divorce. None of those involved can ever stop talking and working out the terms as time and technology come into effect on the deal. My concern is spending another generation without coming to terms with our many, many First Nations, because I look at all the time we've spent so far and how few treaties we have. The relationship goes way beyond 'title' and all that word means. It is about economic development, education opportunities..."
What the William case did most, said Rustad, was open a window of opportunity. The case had been on the books and building up to a final edict for 20 years and although all Supreme Court decisions are open to interpretation, they exist to give clarity over an otherwise murky topic. This case set down some ground rules and instead of scaring industry and alienating other levels of government, B.C. was excited to have the clarity.
Even Minister of Energy and Mines Bill Bennett, someone accused in the past of being a hardliner in favour of unfettered industry, said this was a fresh new day for the history of the province.
"I think we mistakenly - and I include myself in this - had the thinking that this [conceding aboriginal title rights over the vast majority of the B.C. land-base] was a problem, a burden," Bennett said. "We understand now, and First Nations showed us the way on this, that this is really a big opportunity. And it is good for everybody - the province, the company wishing to do business, the community, the First Nation."
Only this week, the province and three more First Nations - Gitxaala, Kitselas, and Yekooche - added their names to the growing list sharing as prescribed governmental partners in the taxation benefits of LNG projects. Such agreements do not require the First Nation to give up some other point of concession nor does it interfere with the First Nation's ability to negotiate their individual agreements with the LNG proponent companies for activities on each First Nation's part of the land-base.
Rustad said he was recently in the room with heralded Nisga'a elder Joe Gosnel who led the Nisga'a Nation to one of those treaty agreements in British Columbia. Gosnel said that First Nations had fallen far behind non-aboriginal jurisdictions, economically, and it was important to actively engage in getting that past put behind everyone.
That economic development gap was a racist imposition forced on aboriginal peoples by years of colonialism, Rustad clarified, not some coincidental inability for all of Canada's First Nations to suddenly arrest their own progress. It was caused by an arrogant and incorrect assumption of superiority made by European governing forces, said Rustad, but it was not the original attitude of incoming Europeans.
"When Europeans first started moving into what is now British Columbia, it was done in partnership with First Nations peoples," said Rustad. "We need to get back to that spirit of partnership, instead of that view of 'state' and 'rule' because that was not the reality on the ground back then. The idea that we conquered First Nations was a widespread fantasy and you cannot operate on the basis of a fantasy. What the William case did, and other cases too, was wake a lot of people up from that fantasy. Now we are back to looking at shared decision making on the landscape, respecting cultural history and our place in it as well as their place in it, coming to grips with who we are as well since there is a 'we' to consider as well as a 'them' to consider and how First Nations and British Columbians are also one in the same in a lot of ways but there are also definite cultural boundaries that must be acknowledged. Environmental stewardship, for example, is not just important for First Nations, it is vital for everyone. The William Case didn't answer all the questions or put everything to rest, but it did open a big window of opportunity. It changes the way business is done, it makes business in B.C. more effective, and better for all the people of the province. It makes us all consider that we are sharing the land-base, we have to act with respect, these activities have to happen in a sustainable way, and we have to allow all the parties to engage and share the benefits together."
There are considerable variables. Rustad pointed out that you can't change where the gold or natural gas deposits or merchantable timber are, so those sites are hot-spots in this new realm of shared decision making.
Also, there are more than 200 First Nations in B.C., each with its own profile.
"I am pumped about 2015," Rustad said. "I am excited about the possibilities, based on the Ts'ilhqot'in decision, and the meeting we held [in September] between the entire cabinet and more than 400 aboriginal leaders representing the 200-plus First Nations of the province all in the room together at the same time. That was a first. And those meetings had meat, so we have action items to move on. There were a lot of plans already underway before the William decision was made and we have a premier who recognized right away the opportunity that court case presented us with. So I think this is going to be one awesome year in B.C. history."
