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High court's title ruling changes aboriginal landscape, says experts

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VANCOUVER - Pipelines. Gold mines. Liquefied natural gas. Coal. Logging. Fisheries.

The list of natural resource projects potentially affected by a landmark ruling from the Supreme Court of Canada is long and lucrative.

And industry, policy-makers and indigenous leaders alike will be sorting through the fallout from the decision on aboriginal title for some time to come.

"We won't really know the implications, I think, probably for a number of years, maybe a decade or so," said Gordon Christie, director of the Indigenous Legal Studies Program at the University of British Columbia law school.

"Let's see what the province does in reaction to this and what impact this has on resource development."

The high court decision granted aboriginal title — for the first time in Canadian history — to the Tsilhqot'in Nation in the B.C. Interior.

It amounts to ownership akin to private property and provides a road map for First Nations across the country to establish title over unceded lands.

"Until yesterday, we didn't actually have any piece of land in Canada that was clearly held under aboriginal title. We knew it existed but we hadn't had any First Nation that actually was able to establish that they had title to a piece of land," Christie said.

"That's changed. So we now know that it's possible — finally."

And it wasn't a small postage stamp of land. The high court granted title to more than 1,750 square kilometres, approximately one-third the size of Prince Edward Island.

The decision buoyed opponents of oil pipelines proposed through B.C., including the Northern Gateway pipeline by Enbridge (TSX:ENB) and the Trans Mountain line by Kinder Morgan.

"I think they're probably back on their heels," said Stewart Phillip, grand chief of the Union of B.C. Indian Chiefs.

The Gitxaala, through whose territory the Northern Gateway must pass and who have already launched court action against the project, said approval of the pipeline violates the principles set out by the high court.

Unlike in other provinces, the Crown never signed treaties with most British Columbia First Nations, including the Tsilhqot'in. While the decision is specific to their claim, there are also aboriginal groups in Ontario, Quebec and the Maritimes that did not sign treaties.

The ruling prompted the Tahltan nation to announce its intention to file a title claim to derail Fortune Minerals' controversial Arctos Anthracite coal project on Mount Klappan, in northern B.C.

The Tsilhqot'in victory means the province and the federal government cannot approve the mine without their consent, the nation said.

"We do not want to go to court, but so far the province and Fortune have refused to listen to us and court may be our only option," said Annita McPhee, president of the Tahltan Central Council.

The Association for Mineral Exploration British Columbia declined a request for an interview about the decision. The Council of Forest Industries did, as well.

But Prof. Dawn Mills, from the University of British Columbia's Department of Mining Engineering, said the decision is an opportunity for industry to work with First Nations to evolve.

"This is an opportunity to critically look positively — not negatively — to look positively at best practices," she said.

The mining industry model was already changing, Mills said. First Nations have been open for discussion and open for business, she said.

"It's not business as usual but I think it's better business than usual," she said.

But they'll have to talk environmental stewardship, along with royalties and jobs, said Prof. William Lindsay, director of the office of aboriginal affairs at Simon Fraser University.

"It's new, but I don't think people need to be afraid of it," Lindsay said. "Now we have certainty. Now we know where the clout lies and people have to get together and work through these issues."

Chief Joe Alphonse, head of the Tsilhqot'in National Government, left the door open to investment.

"You want certainty for your investors to come into British Columbia and Canada? Then deal with us as First Nations people, deal with us in a meaningful way, in a respectful way."

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