On June 26, 2014, the Supreme Court of Canada made one of its most significant rulings with regards to aboriginal rights in history, granting - for the first time ever - aboriginal title to more than 1,700 square kilometres of traditional territory to the Tsilhqot'in First Nation.
The implications of this ruling are profound. Grand Chief Stewart Phillip of the Union of BC Indian Chiefs said, “This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.” It is being hailed by some as the most powerful legal weapon now available to prevent Enbridge’s Northern Gateway pipeline (and Kinder Morgan’s Transmountain pipeline expansion plans) from ever being constructed.
The saga of the Xeni Gwet’in (known as the Nemiah Band, part of Tsilhqot’in First Nations) aboriginal title case is over 24 years old. My husband, Paul George, and I were approached by their lawyer back then to help fund the research to establish the case. We were directors with Western Canada Wilderness Committee, an environment group that Paul co-founded and he and I, together with lots of dedicated volunteers and staff, helped build from our kitchen table to 100,000 members and donors.
We came up with the needed funds despite the fact that the economy was in recession and money was tight. We believed that this case would be hugely important and had a real chance of establishing First Nations’ rights and title over land that was being clearcut logged. We knew that the Nemiah Band didn’t want to see the land clearcut, and that officially recognized title would give them a strong chance to protect their territories. We saw a natural alignment between traditional First Nations' values and the values we held as environmentalists.
Little did we know then that it would take 24 years of tenacity and resolve on the part of the Tsilhqot'in First Nations (plus much, much more money) to take this legal case to its successful conclusion. It's hard to adequately express how deeply grateful I am for their strength of vision and their persistence.
When I listened to all the news clips on the Supreme Court's decision last week, I was elated. I absolutely believe, just like I did 24 years ago, that if First Nations, with their commitment to protecting their environment and traditional territories, are bolstered by the legal establishment of their rights and title, they will be the leading force in stopping the pipelines and turning around global warming.
My husband wrote about the story of the early Tsilhqot'in case in his book Big Trees not Big Stumps, a chronicle of 25 years of saving wilderness with the Wilderness Committee. I think he's an engaging author.
Excerpt from Big Trees not Big Stumps by Paul George (© 2006), pages 157-159
A few weeks after moving to 20 Water Street, Jack Woodward came to see me. Jack and I had become friends during the early ‘80s when I was consulting for several First Nations and he was fast becoming one of B.C.’s foremost lawyers in the field of aborginal law. I always liked working with Jack. He was smart, dedicated and very funny. It was Jack who taught me the importance of culturally modified trees in proving “continuous use and occupancy” of the land by First Nations.
He convinced me that by using both “aboriginal title” and the sum total of all the aboriginal rights a nation possessed, First Nations could wield huge legal power in the fight to protect wilderness.
Jack took forward the first case in Canada to test the meaning of “aboriginal rights” after the clause affirming aboriginal rights was added at the last minute to the Canadian Constitution of 1982. Although the inclusion sounded good, there was a catch: the word “existing” was added as a qualifier. No one knew what aboriginal rights still existed, so it would be up to the courts to decide.
Jack was hired by Huu-ay-aht, a Nuu-chah-nulth First Nation, to protect its rights to use a clam bed located beside one of its Indian Reserves along the Alberni Inlet. This band harvested their clam bed as their ancestors had done for thousands of years. The B.C. government was in the process of de-facto expropriating it by issuing a licence to a company to grow mussels on top of the bed. Jack argued in court that the band had an “existing” aboriginal right to continue their “traditional use” of the clam bed and won the case.
I suspected that Jack’s visit to our new storefront office that summer of ‘89 was more than just a friendly one. I was right. He sought our financial support for a court case that, according to him, would save a lot of wilderness. “But first off, where do you stand on trapping?” he asked me. He knew that I personally had supported the court challenge to the automatic renewal of TFL 24 with full knowledge that it had involved asserting the trapping rights of the Haida. “I support the aboriginal right to trap, but I’m against the cruelty involved just to put pretty fur coats on rich women. I know that trappers, in general, are our allies because they want to preserve wilderness in order to continue to trap, but I don’t know where the other WCWC directors stand,” I replied.
Jack then described the 300-member Nemiah Indian Band, the Xeni Gwet’in First Nation, that lived a “cowboy lifestyle” near Chilko Lake on the Chilcotin Plateau. The Band’s chief, Roger Williams, was 20 years old and a champion wild bull rider on the local rodeo circuit. The Nemiah had been isolated without road access until fairly recently. Clearcutting was advancing towards them, and they didn’t want their traditional territory logged. They’d seen the negative impacts that logging had had on several neighbouring aboriginal communities on the plateau.
“It’s the last of the wild west out their, Paul, where wild horses still roam. The Nemiah speak their native language and their traditional culture is strong. They have a strong legal case...the only thing they don’t have is money,” Jack said. He went on to outline the legal case in layman’s terms. “The case is quite simple. One of the band’s traditions is to make squirrel skin booties for each new-born child. It’s the warmest of furs. Squirrels live in the trees. If the logging compancy cuts the trees down, there’ll be no squirrels and the Nemiah’s aboriginal right to make their special baby booties will be taken away from them,” explained Jack, with a twinkle in his eye.
“Even the most conservative old justice, who might not easily comprehend biologists’ expert testimony about the negative impacts of logging on fur-bearing animals, can understand that,” I exclaimed, seeing the possibilities. “How much do you need?”
“About $100,000 to get started,” he said matter-of-factly, as if it were a small sum of money.
“You must be kidding. That’s impossible. You know we don’t have that kind of money. What’s the minimum amount you need right now?” I asked.
Jack thought for a moment and said, “$17,000.”
“Anyway, we can’t fund a land claim case. It’s not in our mandate,” I said.
“You won’t be funding the case. You’ll be funding the research work into the aboriginal rights to trap and how those rights relate to wilderness preservation. You’ll wind up with an important document you can use,” Jack replied.
I wanted to say yes on the spot. But this time I knew without doubt that I would have to get the approval of the other directors to commit that much money. “Do you need it now in one lump sum?” I asked. Undoubtedly sensing that it was impossible, Jack replied that small installments over time would be fine.
It was a hard sell around the directors’ table. It was a great deal of money. One director pointed out that not all our members supported trapping or native land claims. Another put it bluntly, “How do we know that the Nemiah don’t just want to get control of the land so they can log it themselves?”
“What if they had a tribal park declaration like Meares Island and the Stein Valley? Could we do it then?” I asked. The answer was yes. I called up Jack and explained the situation. He invited me to come with him the next week to attend a Nemiah Band Council meeting. I was keen to go.
Chilcotin country is beautiful. The Nemiah Valley itself is dominated by a big mountain; the backdrop to the band’s meeting hall. I pointed to the mountain and asked one of the natives what its name was, trying to be friendly. “Don’t point!” he commanded, informing me that I had just broken a big taboo. No one points at, or climbs up, Ts’yl-os (Mount Tatlo). This sacred mountain keeps watch over the Nemiah people and their territory. What I had done offended Ts’yl-os and could cause a severe weather change.
In was an inauspicious beginning. The hall was nearly full. The men in attendance all wore cowboy hats. Many stood solemnly and silently at the side and back of the room, leaning against the walls. It was very intimidating. I was nervous as I told them bluntly about needing a tribal park declaration document in order to satisfy WCWC members’ doubts as to the Nemiah people’s true intentions regarding the use of their traditional lands. The declaration had to have a map of their traditional territory with the portion to be included in the tribal park and the rules of the land use within that park. Without this we could not provide any financial support. I gave out samples of the Meares and Stein declarations. I left the meeting with the understanding that they would think about it, and get back to us.
About a week later I got word from Jack that the Nemiah wanted to proceed. In fact, they had already drafted their own tribal park declaration! He brought me the text, a hand-drawn map and a design sketch of how they wanted their finished document to look. They wanted the declaration in their own language on one side and the English translation on the other. “There might not be an exact one-to-one correspondence in meaning between the two versions,” Jack explained to me, because some of the Xeni Gwwet’in’s concepts did not easily translate into English. The biggest stumbling block was the idea of a park. They did not want to declare the area a tribal park because “park” was a non-native concept and parks had always barred native use.
Instead, they had come up with the title Nemiah Aboriginal Wilderness Preserve to more fittingly convey their long-standing traditional concept of land use stewardship. In simple, powerful words the declaration prohibited commercial logging, mining, road building and damming of rivers within their preserve.
It affirmed the Xeni Gwet’in’s intention to live there forever, to practice their traditional ways, but it also conveyed their willingness to share their land with those willing to respect it and leave it unharmed. He handed me the original material and asked me to help get it printed. I felt honoured.
I went to see a young graphic artist in Victoria who one of our volunteers recommended. After briefly talking to him, I hired him on the spot and gave him the Nemiah’s draft text and artwork. A week later he handed me a stunning declaration document. He suggested printing it on parchment paper (costing only a little more than regular paper). We followed his advice and printed up several thousand copies. We sent most of them to Chief Roger William, more than enough for every Nemiah Band member to have one. Our comptroller somehow found the money to pay for this printing of the declaration and to send Jack cheques every time he requested - installments on the $17,000 we promised for legal research.