|Majority Decision of BC Court of Appeal Dead Wrong
JOINT PRESS RELEASE - March 17, 2008
OKANAGAN INDIAN BAND
ADAMS LAKE INDIAN BAND
NESKONLITH INDIAN BAND
SPLATSIN FIRST NATION
The Chiefs of the Okanagan, Adams Lake, Neskonlith, and Splatsin Bands are bitterly disappointed with Friday’s BC Court of Appeal decision to sever Aboriginal Title issues from the ongoing case of British Columbia v. Okanagan Indian Band. This decision prevents the Okanagan from raising their Aboriginal Title to advance recognition, and leaves undecided the central issue of how the Crown got its title, which was for the first time placed squarely before the Court.
“The majority of the Court of Appeal has it dead wrong,” said Okanagan Indian Band Chief Fabian Alexis. “Two of the judges bought the Province’s argument that there is a sufficient degree of consultation and that the issue is only about an Aboriginal Right to harvest timber for domestic purposes. The fact is that the fundamental issue is authority and jurisdiction over the forested land, which has now been sidelined.”
The decision today includes a sharply dissenting opinion from Mr. Justice Donald agreeing that the issue of Okanagan Aboriginal Title will remain outstanding no matter how the Rights issue is decided. He called the majority judgment “radical surgery” on the existing case. Okanagan Indian Band Chief Fabian Alexis stated that he was frustrated by the decision that will leave the critical issue of Aboriginal Title unresolved, and that the case must now go to the Supreme Court of Canada for a decision.
Neskonlith Indian Band Chief Judy Wilson stated: “The Province argued in court that ignoring Aboriginal Title issues saves money. In fact, vast amounts of money and resources are devoted to the tremendous efforts of the Province to avoid addressing real on-the-ground respect, recognition and reconciliation of our Aboriginal Title.”
“When you compare the court decisions of Haida and Tsilhqot’in, Judges Mackenzie and Lowry’s decision demonstrates the huge gap of differing views of the judges of this Province on Aboriginal Title” said Adams Lake Indian Band Chief Nelson Leon.
Okanagan Nation Alliance Chair Grand Chief Stewart Phillip observed: “There is no New Relationship in this Province. It is regrettable that the Province’s strategy of denial of our Aboriginal Title provides no certainty for industry’s investment within our territories.”
“As BC celebrates the last 150 years, we as Indigenous Peoples cannot share any joy in a history founded on the denial of our Aboriginal Title and Rights which continues to this very day,” said Splatsin First Nation Chief and Shuswap Nation Tribal Co-Chair Wayne Christian. “150 years of denial really is nothing to celebrate. The mounting frustration and outrage is at the point where all that is needed is a match to the fuse leading to a long hot summer of discontent across this Province.”
For more information:
Chief Fabian Alexis, Okanagan Indian Band – (250) 308-2838
Grand Chief Stewart Phillip, Okanagan Nation Alliance – (250) 490-5314
The Jules and Wilson litigation arose when the Adams Lake, Neskonlith and Splatsin Bands of the Shuswap Nation Tribal Council and the Okanagan Indian Band and Westbank First Nation of the Okanagan Nation commenced logging in their traditional territories in an effort to provide housing for their membership, and challenged the province’s authority over their lands and forests. The Tribal Councils had authorized the logging.
Shortly after the logging activities took place, the Ministry of Forests ordered the Bands to stop because they did not have a provincial permit and obtained an injunction preventing them from doing anymore logging. The Bands challenged the constitutionality of the provincial legislation, based on their Aboriginal Title and Rights to harvest timber in the Browns Creek and Chase Creek/Harper Lake Watersheds.
In 2003, the Supreme Court of Canada, recognizing the public importance of the First Nations’ Title and Rights claims, ordered the Province to pay the Bands’ legal costs in both actions. In an effort to avoid this order, the Province tried to discontinue both cases. The Court rejected this, but in 2005 Mr. Justice Sigurdson did order that only one case would proceed at a time. The Shuswap Nation case was stayed and only the Okanagan Nation case was allowed to go forward. Most recently, on July 10, 2007, responding to the Province’s request, the B.C. Supreme Court ordered that Aboriginal Title issues should be severed off the Okanagan Nation’s case on the basis that it could be cheaper to the public purse to decide the case without addressing the Aboriginal Title issues. The B.C. Court of Appeal, in Reasons given on March 14th, 2008, dismissed the Bands’ appeal.