An all-or-nothing bid for control of a pristine valley in British Columbia's central Interior resulted in a muddied victory for the native band that invested 17 years in the battle.
In a Canadian first, Mr. Justice David Vickers of B.C. Supreme Court found Chief Roger William and the Xeni Gwet'in people succeeded in establishing their aboriginal title to a significant portion of their traditional territory.
But in an unusual verdict, following the 339-day-long trial, Judge Vickers limited his findings of title to a non-binding opinion, and directed the parties to negotiate based on his ruling.
Judge Vickers did issue a strong rebuke to the provincial government, saying B.C. forestry laws don't apply to aboriginal title land, opening the door to greater federal control over Crown lands that are subject to land claims.
"While I am unable to conclude that the Tsilhqot'in people have Aboriginal title over the entire Claim Area, I do find that there are areas both inside and outside the Claim Area that qualify for a finding of Tsilhqot'in Aboriginal title," he wrote in a 473-page decision. "The present provisions of the Forest Act do not apply to those areas that meet the test for Aboriginal title."
The Xeni Gwet'in, part of the larger Tsilhqot'in tribe, launched the action claiming control of the Nemiah Valley after the provincial government approved logging plans they believed would threaten their traditional hunting and fishing rights.
Judge Vickers ruled the Xeni Gwet'in did establish their aboriginal rights, and determined they met the legal test for aboriginal title in roughly 45 per cent of the 440,000 hectares they had claimed. But he could not formally award aboriginal title because the case put forward by the Xeni Gwet'in's lawyers didn't allow him to find for anything less than the entire parcel.
Jack Woodward, lawyer for the band, said yesterday he will ask the federal and provincial governments to sweep aside that "technicality" and accept that the band has in fact made Canadian history with a ruling of title.
Failing that, he said, they will return to the courts to reframe their case. Because Judge Vickers awarded the band a large portion of their legal costs at the outset, the case has already cost taxpayers $11-million to defend and $18-million to prosecute.
Regardless of the unclear outcome, Mr. William, the Xeni Gwet'in chief who brought the case forward, said the ruling means anyone who wants to do business in his band's traditional territories will have to consult them.
"They need to come to us and do their homework," he said.
He said he will be seeking talks with the federal and provincial governments. "If our talks are fruitful, we'll keep moving forward. We don't want to talk forever, but we'll give it a good chance to come to an agreement."
Both the federal and provincial governments were largely silent yesterday on the implications of the ruling, saying they needed more time to respond.
"Our government will review this decision and carefully assess its implications and determine what our next steps might be," Indian Affairs Minister Chuck Strahl said. "We do agree that parties involved in such claims should use discussion and negotiation instead of litigation to resolve these outstanding issues of aboriginal rights and title."
Premier Gordon Campbell took a similar line: "The William decision underlines the fact that the way for us to move forward, to find certainty, to find opportunity, is through negotiations."
Judge Vickers discouraged all sides from returning to the courts for a resolution.
"Throughout the course of the trial and over the long months of preparing this judgment, my consistent hope has been that, whatever the outcome, it would ultimately lead to an early and honourable reconciliation with Tsilhqot'in people," he wrote.
"After a trial of this scope and duration, it would be tragic if reconciliation with Tsilhqot'in people were postponed through seemingly endless appeals. The time to reach an honourable resolution and reconciliation is with us today."
And, he stated, Canada and B.C. must revise their approach toward treaty negotiations for that to happen.
"What is clear to me is that the impoverished view of aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a 'postage stamp' approach to title, cannot be allowed to pervade and inhibit genuine negotiations."
Victoria lawyer Robert Janes, an aboriginal-law expert, said the case will have major implications for treaty talks in general.
"It's a huge vindication for the Xeni Gwet'in and a huge defeat for the province. The Xeni Gwet'in didn't get everything they wanted, but they got far more than any government has been willing to recognize," he said in an interview. "This says aboriginal people are coming to the table with a lot."
Chief Ed John of the First Nations Summit said the federal and provincial governments will be forced to recognize aboriginal title at the treaty table.
"Thanks to the courage of Chief Roger William and the Tsilhquot'in people, this decision will assist all B.C. first nations in their efforts to achieve reconciliation."