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Indigenous Bar Association Applauds Supreme Court Decision in Tsilhqot’in Nation v British Columbia (William Decision)

Press Release – OTTAWA — The Indigenous Bar Association (IBA), applauds the William decision handed down today in a unanimous judgment by the Supreme Court of Canada. The IBA, a national association of Indian, Inuit and Metis lawyers, judges and laws students intervened in the case, urging the Court to consider the importance of Indigenous laws in articulating a test for Aboriginal title. The Court’s decision rejected arguments made by the Federal Government and the BC Government that Aboriginal title required proof of intensive physical occupancy, in what has been widely criticized as the “postage stamp” theory of aboriginal title. In denouncing the Crown theory of Aboriginal title, the Court opted instead for a territorial-based test for proving Aboriginal title, which gives equal weight to Indigenous laws and the Aboriginal perspective.

The IBA President, Koren Lightning-Earle stated: “The IBA would like to congratulate the Chief William and Tsilhqot’in People for bringing us this important victory. We are happy to have been a part of this landmark case.”

The Supreme Court overturned the decision of the BC Court of Appeal, which was based on the postage stamp theory, and upheld the judgment of Justice Vickers of the BC Supreme Court, finding that the Trial Judge’s decision contained no palpable and overriding error. The Court also held that Justice Vickers applied the correct legal test, and, in rejecting Crown arguments, held that:

“In summary, what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the aboriginal group in question – its laws, practices, size, technological ability and the character of the land claimed – and the common law notion of possession as a basis for title.”

David C. Nahwegahbow, IPC, LSM, who acted as legal counsel for the IBA in the case, said:

“This was IBA’s first intervention and we are thrilled that it was such a positive outcome. The decision is historic because it is the first time since the entrenchment of Aboriginal rights in the Constitution Act, 1982, that the Supreme Court has issued such a declaration of Aboriginal title.”

The case is also important for making it clear once and for all that the doctrine of terra nullius has no place, and is not part of Canadian law. “Terra Nullius” means “empty land” and is a racist doctrine that legitimized the taking of Indigenous lands by European powers during the colonial period on the basis that lands occupied by Indigenous peoples were open for the taking because Indigenous peoples were not sufficiently civilized to be considered occupants of the land.

The case sends a strong signal to both federal and provincial governments to negotiate meaningfully with Aboriginal peoples, or face the prospects that the courts are now prepared to give force to Aboriginal and treaty rights in sect 35 of the Constitution Act, 1982. The Supreme Court emphasized the importance of obtaining Aboriginal consent for development on their lands. The reference to consent is significant particularly in light of UN Declaration on the Rights of Indigenous Peoples, which called for free prior and informed consent before development on Indigenous lands.
Koren Lightning-Earle concluded: “The Supreme Court of Canada has issued a very balanced ruling in the William decision, reflective of a country whose legal system is rooted in both common law and indigenous legal traditions.”

The Indigenous Bar Association in Canada (IBA) is a non-profit professional organization for Indian, Inuit and Métis persons trained in the field of law. IBA membership consists of Indigenous lawyers, judges, law professors, legal consultants and law students. The primary purpose of the IBA is to promote respect and recognition of Indigenous laws.

FOR MORE INFORMATION: contact Koren Lightning-Earle, President of the Indigenous Bar Association at:
[email protected] or at 780.721.2345 or
David C. Nahwegahbow at: [email protected] or (705) 325-0520 or (613) 795-1504

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