Letter to the editor: Land title issue overblown

Your recent articles on the New Prosperity project contain some significant errors concerning aboriginal rights and title and their potential effect on the federal review panel process.

Last week’s article “Prosperity’s temerity” (T.N.M., Vol. 99 Issue 24) states that Justice David Vickers’ decision in William v. British Columbia “remains the only time a court has granted rights over a parcel of land to a particular First Nation.” In fact, aboriginal rights have been proven in numerous places across Canada in various other court decisions. This includes the Supreme Court of Canada’s decision in cases like R. v. Gladstone, which was decided in 1996, where the court found the Heiltsuk First Nation had an aboriginal right to trade in the herring spawn on kelp harvest. Further, the Supreme Court of Canada in R. v. Sparrow established a test to determine when an infringement of aboriginal rights may be justified — recognizing government’s responsibility to govern in the interest of all Canadians.

Of even greater concern, this week’s article “The New Prosperity battle begins again” suggests that the question of aboriginal title could “hijack” the federal review panel proceedings that are now underway regarding our New Prosperity project.

We know from Justice Vickers’ ruling that the Tsilqoht’in could not establish aboriginal title in respect of the Fish Lake area where the Prosperity orebody is located (though he felt they could establish it in other areas). While that specific case is going to the Supreme Court of Canada, the findings in fact will not be reviewed by that court. As such, the Fish Lake area is perhaps the only place in Canada where we know aboriginal title does not exist.

Second, even where aboriginal title is proven to exist, it is not inviolable. In the 1997 Supreme Court of Canada decision for Delgamuukw v. British Columbia the court noted aboriginal title includes the right to choose the use to which land is put, but Canada’s then-Chief Justice Antonio Lamer went on to say this: “In my opinion, the development of agriculture, forestry, mining and hydroelectric power . . . are the kinds of objectives that . . . in principle, can justify the infringement of aboriginal title.”

It was in part on that basis that Chief Justice Lamer issued his now famous words: “Let us face it — we are all here to stay.”

More recently, in 2004, Canada’s present Chief Justice Beverley McLachlin said this in Haida Nation v. British Columbia (Minister of Forests): “The Aboriginal ‘consent’ spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give-and-take.”

Even though the Tsilqoht’in could not prove aboriginal title in the Fish Lake area, Taseko has engaged in give-and-take, and we have made extraordinary accommodations to save Fish Lake through our redesigned New Prosperity project. We too are here to stay. 

Russell E. Hallbauer
President and CEO
Taseko Mines