Tsilhqot’in ruling a good reason to revisit Inuit land claims: lawyer
“The Tsilhqot’in ruling is going to make a big difference in the duty of the Crown to negotiate”
For the first time, Canada has defined what is needed to establish Aboriginal title and defined what that means: that Aboriginal peoples must give their consent before governments may use their traditional lands for economic benefit.
In a June 26 ruling, the Supreme Court of Canada recognized Aboriginal title of more than 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation.
The landmark decision has grabbed the attention of Aboriginal groups across the country, given its implications for future economic or resource development on traditional lands that aboriginal people have not ceded to the Crown.
As the decision applies to areas where treaties have not been negotiated, the ruling has yet to make waves in Inuit communities across the country, which are governed by four different land claims agreements.
But “don’t think for a moment that this has nothing to do with (Inuit),” said Peter Hutchins, a lawyer with Montreal-based Hutchins Legal Inc., which specializes in Aboriginal law.
“(The) Tsilhqot’in (ruling) is going to make a big difference in the duty of the Crown to negotiate,” he said. “And it could have an impact on what Inuit can and cannot do.”
Although the decision, written by Chief Justice Beverley McLachlin, seeks to clarify the meaning of Aboriginal title, Hutchins said it also raises questions about some of the surrender clauses drafted in modern treaties, including the Nunavut Land Claims Agreement and the James Bay and Northern Quebec Agreement.
Hutchins helped negotiate the JBNQA and has worked as legal counsel for Nunavik’s Makivik Corp.
“Did the people who signed historical treaties even understand what they were signing?” Hutchins asked. “If those nations has this title before they signed the treaty, could they surrender it?
“I think the same questions can apply to modern treaties,” he said. “And Tsilhqot’in is a very good reason to revisit them.”
The Tsilhqot’in decision may be helpful in giving Inuit a much stronger hand in all the regulatory bodies that manage development in their territories, Hutchins said, or at the very least encourage a second look at their structures.
“And perhaps it just means a new perspective for the people implementing land claims,” he said.
In its decision, the Supreme Court agreed that the Tsilhqot’in, a semi-nomadic tribe, could claim land title even if they used the land only some of the time, based on occupation of the area, continuous use and exclusive use.
“Movement is inherent to Inuit culture,” Hutchins said. “I think Inuit meet that criteria.”
Some community leaders in Nunavut say they’re already looking into what the ruling could mean for offshore Inuit rights, which under the NLCA extend only 12 miles into the territory’s waters.
The National Energy Board’s recent approval of seismic testing in Baffin Bay and Davis Strait has been opposed by many Inuit, who hope their traditional use of those waters for travel and harvesting may hold weight.
That argument is strengthened by the new Pan-Inuit trails project, in which researchers have documented the Inuit’s centuries-old use of Arctic sea ice to live, hunt and travel.
The Supreme Court decision also coincided with the release of a report Hutchins’ firm was commissioned to prepare for Sen. Charlie Watt on the legal rights of Inuit to offshore regions of the Arctic Ocean.
The report calls on the federal government to respect any Inuit rights that might overlap with Canada’s offshore sovereignty claims, in light of the country’s continental shelf submissions under the United Nations Convention on the Law of the Sea.
But in any case, should Inuit seek to expand or clarify their rights, it will have to be done inside a court room, Hutchins said.
What’s unfortunate, he said, is that any advances in Canadian Aboriginal law have occurred because court decisions have forced a government’s hand.
“It’s never because of a government’s understanding,” Hutchins said. “You can’t get anywhere talking to them — it’s litigation. I hate to say it, but that is what gets a government’s attention.”