Richard Rolke’s comments concerning the Okanagan Indian Band and the rail trail should be reinforced.
He suggests wisely that, “jurisdictions involved in purchasing the rail corridor look behind legal boundaries or legal limitations and do what is right.” Having just watched the Truth and Reconciliation ceremonies and First Nations Chief Perry Bellegarde on Power and Politics (CBC), his suggestion needs to be heeded.
The local jurisdictions do need to consider the legal history of land claims in B.C. in particular. That the band was blocked from placing an injunction against the sale of the railway lands is a small setback in the overall history of indigenous rights before the courts, especially the Supreme Court of Canada (SCC).
The vast majority of court cases that have risen to the highest courts have been in favour of First Nations.
This is based on a history that affects all of us, local jurisdictions included, from the Royal Proclamation (1773) through the British North America Act (1867), and the Constitution Act (1982). The SCC’s decision in Delgamuukw versus B.C. (1997) did not grant title to the First Nations but, “confirms that aboriginal sovereignty, i.e., exclusive jurisdiction and sole possession, is the supreme law of the land pending treaty and, correspondingly, establishes the utter irrelevance of Crown parliamentary legislation and Crown court recent inventions based upon the common law.”
“Pending treaty” – powerful words, as the majority of B.C. is not subject to any treaty at all, save a few sites in Victoria and Treaty 8 in the Peace River (the latter “is a promise to the inhabitants of the land that would be free to continue their land-based lifestyle and culture of hunting, fishing, trapping and gathering, to no end”).
In other words, the Okanagan land we live on is subject to, “aboriginal sovereignty” pending treaty.
However, an even stronger case was made last year in an unanimous SCC decision concerning the Tsilhqot’in First Nation (2014) granting aboriginal title to that particular band: “Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”
As to the nature of that title the SCC decision says, “The nature of aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.”
In sum, while the Okanagan Indian Band was not successful in its application for an injunction, if it follows it through perhaps to the Supreme Court, there is a strong indicator for the band being granted aboriginal title.
For that matter, we are all living on land that has not had its First Nations sovereignty extinguished through treaty and all levels of government need to keep this in consideration.
If this issue does proceed through higher courts, it would be highly ironic if the communities involved had paid a significant amount of money for land that the CNR did not have legal title to in the first place, according to the historical precedents listed above.
The communities involved should be negotiating now with the Okanagan band. The lead time and positive intentions will lead to, as Richard Rolke indicated, doing what is right.
Jim Miles
Vernon
