Sunday, July 6, 2014

Questions that were not answered in the Tsilhqot'in decision

I have spent the last ten days thinking a lot about the recent Supreme Court of Canada Tsilhqot'in decision and the implications for BC.   Here are some questions that arise for me:
  • What role remains for BC in governing aboriginal title land?
  • If only the Tsilhqot'in can make decisions about the use of the land, in what case would BC have a legitimate reason to infringe their title?
  • What is the Tsilhqot'in body that will govern this land?  Is it a Xeni Gwet'in First Nations Government (an Indian Act band), The Tsilhqot'in National Government (the tribal council), or something entirely new?
  • How will the Tsilhqot'in manage the land?   By this I do not mean the day to day details but what will be the form and mechanism of how they will create the laws and regulations to look after the land?
  • What legal mechanism will the Tsilhqot'in have to collect any fees, rents or taxes due to them from the land?
  • Does the decision give the Tsilhqot'in aboriginal self government that is constitutionally protected?   The decision makes it clear that the title is collectively owned by the Tsilhqot'in and that the Tsilhqot'in have the power to make the decisions related to land use.   A collective that makes decisions has to have a governance structure, so does this mean the decision also found a right to self governance?
  • If there is a dispute on Tsilhqot'in land, what court will be able to hear the case?
  • What is the status of the existing Xeni Gwet'in Indian Reserves in the area?   They were specifically excluded from the case but lie at the heart of the Tsilhqot'in lands.
  • The original 2007 BC Supreme Court case and the recent Supreme Court of Canada decision only explicitly address forestry tenures, but with the scope of rights aboriginal title has, how can other tenures continue?
  • What happens to existing mineral tenures?   I honestly have no idea at all.
  • What happens to existing water rights?   Water rights in BC are based on a system that grants the first right to the water to the person with the first registered water rights.  Aboriginal Title land is older than any water rights in BC so it could very well mean existing water rights become secondary to the aboriginal water rights
  • What happens to provincial parks that are now Tsilhqot'in land?
  • Were fee simple lands included in Tsilhqot'in lands?  This was not discussed by the Supreme Court of Canada.   The original BC Supreme Court decision seems to say that fee simple lands did not extinguish aboriginal title but did not say if there was aboriginal title or not.
  • What happens to fee simple title lands if there is aboriginal title?
These are all questions that will have to be answered

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