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Sayers: How Tsilhqot'in decision puts both treaty process, load on courts, at risk

Hupacasath First Nation member, lawyer and Tyee National Pool contributor Judith Sayers has posted an analysis about why the recent Tsilhqot'in decision trumps treaty negotiations in British Columbia by proving how costly yet largely unproductive they have been for First Nations over the past quarter-century. But she warns that if courts become the new avenue for title claims, they will "definitely grind to a halt."

Sayers adds it up this way:

"Through the B.C. Treaty Process, First Nations took out loans to finance their participation in the negotiations. Tsawwassen First Nation has to pay back $5.6 million dollars over 10 years. Maa-nulth must pay back $12.75 million over 10 years. (Maa-nulth is comprised of five First Nations).

"In Tsilhqot'in, the court ordered the governments to pay the costs at the B.C. Supreme Court level and costs were not mentioned at the B.C. Court of Appeal or the Supreme Court of Canada decision."

For all the time and money expended, Sayers notes on the First Nations in British Columbia Portal, "Tsawwassen First Nation got 724 hectares of land held in fee simple in their final agreement. Maa-nulth obtained approximately 20,900 hectares."

By contrast: "Tsilhqot'in have aboriginal title over 220,000 hectares or around half of their territory. Differences between TWN, MNA and Tsilhqot'in lands are stark."

Given that the courts now have provided a more efficient and generous affirmation of First Nations claims, Sayers raises key questions about the road ahead.

"Going to court to prove title was a 12-year battle for the Tsilhqot'in. Litigation is expensive and lengthy and for First Nations who still have to pay back treaty loans, this could be costly. Can you imagine if 190 First Nations went to court to prove title? (I use 190 as there are 203 First Nations in B.C., five are Tsilhqot'in, and eight are treaty 8). It took 339 days over five years to do the trial for the Tsilhqot'in territory. Title cases will definitely grind the court system to a halt. 

"Other than courts, there is no method of proving title. Will First Nations and the governments be able to come up with an alternative system to prove title? Or would they want to?"

Sayers goes on to observe:

"Negotiations are always possible, but will the parties be able to agree on the amount of land that the First Nations want as aboriginal title lands? Will the governments agree to consent? How seriously will they take the Supreme Court of Canada decision this time? We know after Delgamuukw there was no change of treaty mandates even though everyone thought there would be. 

"The risks for the province of B.C. and Canada are great. The economic implications for B.C. is immense if all First Nations went to court and got a minimum of 50 per cent of their territories declared aboriginal title lands with ownership of the resources on those lands. Ninety-four per cent of British Columbia is Crown lands and those are subject to aboriginal title as are private lands."

Read Sayers' entire post here.

Find a recent Tyee article by Sayers on how the Tsilhqot'in decision will change business dealings in B.C. here.

David Beers is editor of The Tyee.

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