ANNOUNCEMENT - The TSKLH Nation has commenced legal proceedings in the Supreme Court of British Columbia (Vancouver Registry No. S036687) to advance its Aboriginal rights and title claims
TSKLH Traditional Territory – July 16, 2018:
On May 25, 2018, the TSKLH Nation filed a notice of application asking the Supreme Court of British Columbia to join the TSKLH Nation as a party to the Gitanyow Hereditary Chiefs’ existing Aboriginal rights and title claim. The TSKLH Nation and the Gitanyow have overlapping territorial claims, and the TSKLH Nation asks to be added as a defendant to permit it to defend its claims against the Gitanyow.
As part of its application to join that claim, the TSKLH Nation also asks the Court to permit it to file its own Aboriginal rights and title claim against the Province and Canada, in which the TSKLH Nation asks for declarations of Aboriginal rights and title. The TSKLH Nation will argue that it is most efficient for the Court to hear its and the Gitanyow’s claims simultaneously, as they raise questions of ownership to some of the same territory.See here for a map of TSKLH Territory.
The TSKLH Nation seeks compensation from the Province and Canada for past injustices. The TSKLH Nation is not seeking any retroactive compensation from private land holders on TSKLH Territory; it only asks that no further land tenures, resource extraction permits, or the like, be issued over TSKLH Territory going forward, without the TSKLH Nation’s consent.
No date has been set for the hearing of the TSKLH Nation’s application.
TSETSAUT/SKII KM LAX HA NATION’S RIGHTS
The Tsetsaut/Skii km Lax Ha Nation is a relatively small Aboriginal rights-bearing community with a distinctive Tsetsaut ancestry and a large traditional territory. The Tsetsaut / Skii km La Ha Nation and its ancestors have used and occupied their traditional territory since time immemorial. We continue to assert our right to the land and the resources within the territory.
The Tsetsaut/Skii km Lax Ha Nation is committed to protecting the civil, political, cultural, social, inherent, and economic rights of the Tsetsaut/Skii km Lax Ha members, and we rely on our cultural teachings and traditions to defend these rights. The Tsetsaut/Skii km Lax Ha Nation is seeking a resolution for the long outstanding claim to our traditional territory. We first filed a Statement of Intent to Negotiate a Treaty with the British Columbia Treaty Commission in 2002. We will continue to assert our rights and title, and will do whatever is required to obtain certainty of ownership over the Tsetsaut/Skii km Lax Ha Nation’s land and resources.
The Province of British Columbia has stated that the Tsetsaut/Skii km Lax Ha Nation has a “relatively undisputed” and “relatively strong” claim of Aboriginal title. The Supreme Court of Canada has interpreted Aboriginal title as a sub-set of Aboriginal rights, and stated that it “confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land” (Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 73). Aboriginal title, as currently defined by the courts, is a right to the land itself and its protection is broader than the activities a group may have traditionally carried out on the land. In other words, the protections conferred by Aboriginal title are not limited to resources and traditional practices such as fishing and hunting; it is a communally held right to resources on the land, and carries with it subsurface rights. Many First Nations in BC assert Aboriginal title to their traditional territories, as few First Nations in the province – including Tsetsaut/Skii km Lax Ha Nation – have ever concluded treaties with the Crown.
The Tsetsaut/Skii km Lax Ha Nation also asserts Aboriginal rights throughout our territory. Constitutional protection for Aboriginal rights is set out in Section 35(1) of the Constitution Act, 1982. As interpreted by the Supreme Court of Canada, Aboriginal rights under s. 35(1) include Aboriginal title and any activity that is “an element of a practice, custom or tradition integral to the distinctive culture” of a First Nation (R v Van der Peet,  2 SCR 507 at para 46). For a practice, custom or tradition to give rise to an Aboriginal right, it must have been a central and significant part of the society’s culture prior to European contact. Aboriginal rights are communal in nature, that is, they belong to a First Nation (such as the Tsetsaut/Skii km Lax Ha Nation) as a whole, although some Aboriginal rights may be exercised by individuals, e.g. the right to fish, hunt and trap on traditional lands, including the right to subsist on these resources. Aboriginal rights are grounded in the recognition of long term use and occupancy of the land by Aboriginal peoples in Canada prior to European arrival.
The Tsetsaut/Skii km Lax Ha Nation has never ceded or surrendered our lands, rights to our resources or the power to make decisions within our territory.
A treaty is a constitutionally protected, government-to-government agreement that creates long-term, mutually binding commitments. A modern treaty is a negotiated agreement that sets out clearly defined rights and responsibilities of First Nations and the federal and provincial governments. Treaties also provide greater self-reliance for First Nations communities. In British Columbia, parties to a treaty include the First Nation, the province and the federal government.
Treaties negotiated through the BC treaty process will identify, define and implement a range of rights and obligations on behalf of the First Nation, the province and the federal government, including existing and future interests in land, sea and resources, structures and authorities of governments, regulatory processes, amending processes, dispute resolution, financial compensation and fiscal relations. Examples of topics under negotiation for treaty rights may include land, land title, forest and resources, governance, annual payments, roads and rights of way, fisheries, wildlife and migratory birds, environmental assessment and protection, intergovernmental relations and taxation.