On April 23 and April 24 at Maht Maht gym, the Nuu-chah-nulth Tribal Council hosted another in a series of strategic planning meetings that focused on the landmark Tsilhqot’in aboriginal title decision of 2014. That ruling marked the first time a Canadian court had recognized Aboriginal title over a territory.
Many nations across British Columbia view the decision, in which the Supreme Court of Canada said Tsilhqot’in title rights blanket a wide expanse of traditional lands, as a tool to be used to realize their own goals of self-determination and self-sufficiency. And Nuu-chah-nulth Nations are among that group.
Tseshaht Chief Councillor Hugh Braker welcomed participants to Tseshaht territory and told them that polling of Tseshaht members is currently underway to see if they want to pursue a declaration of rights and title in court.
The meeting was facilitated by Kelly Foxcroft Poirier and Norine Messer. They had borrowed an exhibit of Bob Soderland photographs from the Alberni Valley Museum. The photos were taken over the 25 years that Soderland was editor of Ha-Shilth-Sa. The display adorned the room, and was meant to honor and remember the successes and strengths of the Nuu-chah-nulth over the past decades, and set the tone for the work before the group.
NTC President Debra Foxcroft said walking into the space gave her shivers, reminding her of a time when she was in a room with these people, hearing them talk about Nuu-chah-nulth territory, saying “it’s always been ours and it will always be ours.”
Keynote speakers included Louise Mandell, QC, a lawyer who works on aboriginal rights and title cases, and Grand Chief Stewart Phillip, president of the Union of BC Indian Chiefs.
When Phillip saw the photos, it reminded him, he said, of the “unshakeable knowledge and faith that BC was Indian land.” Indigenous leaders knew they were sovereign nations. It was inherent. It was a consequence of the fact that “we were here first”. It came with a responsibility to the land and flowed to the people from the Creator.
Ken Watts, NTC vice president, said one of the many things he remembers Phillip advising is to be active on the territory and behave like the land is Nuu-chah-nulth land.
Braker said his community has been very involved in protecting what they say is theirs, with protests over unauthorized logging, protection of the elk resource from poaching, and the threatened blockade of this year’s commercial herring harvest in Barclay Sound, among other initiatives. He said, whatever the approach a nation takes, either through treaty or other means, Nuu-chah-nulth nations can support each other in their endeavors. This statement was built upon by Uchucklesaht Chief Councillor Charlie Cootes.
Mandell spoke about the shift in paradigms that happened with the Tsilhqot’in decision. She said it’s a “beautiful moment in history.”
There were two forces in play at contact between Indigenous people and the colonizers, said Mandell. There was recognition of Indigenous law and rights as set out in in the Royal Proclamation of 1763, and the perfection of law through treaties. But also in force was the colonizers’ mindset.
She said “perverse social Darwinism” came through that mindset; false superiority of Crown laws or the false inferiority of Indigenous laws and, right up until Tsilhqot’in, First Nations were still litigating the Crown’s basic denial of Aboriginal title.
But Tsihqot’in established that Aboriginal title is most akin to Crown title and is not limited to small areas of land like village sites. It ‘blankets’ a wide area of land that the Tsilhqot’in claimed. It ruled that the nation has an interest in all that goes on in that territory.
It repudiated expressly the doctrine of discovery of terra nullius, a term derived from Roman law that means ‘nobody’s land’ and from which the Crown had determined its authority over territory, said Mandell.
The Crown argued that title rights were extinguished by the doctrine of discovery and terra nullias, up until June 26, 2014, said Phillip. Canada and BC used to relish the fact that there hadn’t been one square inch in the province that had been declared aboriginal title, he added. But all that changed with Tsilhqot’in.
Mandell warned the leaders to evaluate carefully the risks and costs of going to court for title, and reminded them that First Nations already have title. It is inherited. What they go to court for is to prove title over a specific landscape.
There are other ways, she said, to take nations in the direction they are looking for rather than going to court, including establishing with neighbors that certain lands belonged to a certain group pre-confederation. And then nations have to be prepared to interact with other jurisdictions.
The court has said repeatedly that there is an expectation of negotiation, and a legal obligation for good faith negotiations, so the Crown can no longer come to the table with a take it or leave it proposition. Good faith negotiation is listening to what the others at the table have to say, and ensuring their concerns and issues are addressed, said Mandell.
It’s important that Nations develop their own institutions for what happens on their lands, said Mandell.
Phillip agreed. “It’s going to be simple to win the war as compared to winning the peace.” He asked the Nations to think about the morning after their title is recognized. How would they embrace it; how would they implement it? What would the day after look like?
He said the Tsilhqot’in experience is a wake-up call to completely map that out. He said government will try to lull Nations into their processes, “because they exist to distract us”, so Nations have to be prepared with a process of their own making. And if the answer to their question is ‘no’, “don’t go down the rabbit hole.”
“We’ve now been blessed with the international minimum standard… free, prior and informed consent,” said Mandell. She said ‘free’ means you have to have the right to say no, and the ability to interact with your own decision-makers and wisdom-keepers, and well before the time you need to make a decision and how to deal with your own consent internally; as well as how you interact with the Crown.
“Your rights and title, jurisdiction and laws have been proved,” said Mandell. They had been deliberately suppressed, but now Indigenous laws should come out and be put into play.
She said all of humanity needs these laws to be in play. Mother Nature needs these laws to be in play.
After the keynotes, the participants gathering in smaller groups for conversation on topics they were most passionate about.
“We heard from tables about the history of the development of the Nuu-chah-nulth Tribal Council,” Poirier told Ha-Shilth-Sa, including methods of engagement, sharing resources and funding, advocacy for education, and for meeting the needs of the people. All these have made Nuu-chah-nulth-aht successful.
They talked about the bold direction and sacrifices made by communities, rejecting government funding and going purposely without supports which led to ground-breaking funding arrangements.
There was talk of rebuilding relationships between elders and youth by bringing people together more, the need to educate non-aboriginal people about the distinct and unique Nuu-chah-nulth worldview, including governance, ownership and stewardship, and the desire of the community to learn more from the Ha’wiih about the ha’houlthee.
And there was a lot of talk about being prepared to assert rights and title, Poirier said, and the power that comes when families occupy the territory and go out on their lands.
