When governments infringe aboriginal treaty rights, they are expected to provide some form of compensation to First Nations.
The BC Guide Outfitters Association of BC (GOABC) and Adventure Tourism Coalition (ATC) are asking for similar considerations for non-aboriginal businesses that have been negatively affected by court and government decisions that recognized Tsilhqot’in First Nation title over their traditional lands in Central British Columbia.
Businesses that once operated guided hunting on what is now Tsilhqot’in title land should be bought out, the associations say, but instead are being starved out -- unable to use lands needed to fully operate their businesses.
One lodge operator is suing the provincial government, and Robin Junger, who specializes in aboriginal law at McMillan LLP, predicts more suits will follow.
“It’s very likely they’ll be seeing more litigation,” he said.
While the concerns over loss of access to Crown land for hunting, fishing and bear viewing are mainly concentrated in the South Chilcotin Mountains, there are growing concerns elsewhere in B.C. that resource tenure and permit holders are increasingly losing access to Crown land and resources, due to aboriginal reconciliation efforts.
“This situation goes far beyond impacting four guide-outfitting members of GOABC,” said Ross Cloutier, CEO of HeliCat Canada.
“Hundreds of tenured businesses are now confused and concerned about their futures. Now is the time for government to consider and represent all British Columbians, to do what’s right, to operate in good faith, and to provide certainty for the local economies and communities that are dependent on the businesses that surround them.”
In its attempt to achieve reconciliation with First Nations, the B.C. government is failing to protect the rights and interests of non-aboriginal businesses and land-owners, say the GOABC and ATC.
“The province of B.C.’s approach to reconciliation and implementation of the Declaration of the Rights of Indigenous Peoples Act (DRIPA) is failing both Indigenous and non-indigenous communities,” the ATC says in a press release.
“After the recent decision by the provincial government to deny a compensation package, it rejected principled reconciliation.”
The compensation package referred to was a proposed buyout of private landowners that operate guiding businesses on former Crown lands that are now Tsilhqot’in title land.
In 2014, the Supreme Court of Canada recognized aboriginal title to 1,750 square kilometres of Crown land southwest of Williams Lake. Specifically, it recognized aboriginal title for the Xeni Gwet’in, which is one of six communities within the greater Tsilhqot’in First Nation.
Private free simple lands were excluded from the title lands, but some of those landowners had hunting and fishing guiding businesses that relied on accessing former Crown land (now Tsilhqot’in title land), and have been gradually losing access to those lands.
Tsylos Park Lodge, for example, is located on 4.5 hectares of fee simple land on the Chilko River that has been in the McLean family since the 1950s. It is one of the private fee simple land enclaves within the greater Tsilhqot’in title area.
The lodge conducts guided fly fishing, horseback riding and bear watching trips. Many of the activities the lodge conducts are on Crown land, some of which is now Tsilhqot’in title land and Ts-yl-os Provincial Park.
Karen McLean, owner of Tsylos Lodge, said the lack of certainty around permitting and access has had a negative impact on her business. She is suing the B.C. government for failing to protect her rights as a business owner.
“On numerous occasions since the Tsilhqot'in court decisions, the province has delayed or neglected to provide licences and permits in a timely manner, and in some instances has not issued permits until the season is over,” her statement of claim alleges.
“You can’t plan your business five years out, because you don’t even know if your permit’s going to exist,” McLean told BIV News.
“You don’t know what changes are coming to permits, because the government or –together with First Nations – are changing all of the permits. You can’t plan.
“If it’s a situation where you’re going to put a company out of business, then there has to be a system for purchasing that business out or compensating them or something.”
After the 2014 court decision declaring Tsilhqot’in title, there was a bridging agreement that allowed businesses to continue to operate in a transitional period, Ellis said. But 10 years on, some businesses are now finding themselves shut out of the areas where they formerly operated.
“Now you have these businesses that are basically being starved out,” Ellis said.
“Coming out of the bridging agreement, the Xeni (Gwet'in) said, ‘we don’t want any hunting on our property,’” Ellis said.
Spokespersons for the Tsilhqot’in First Nation and Xeni Gwet’in could not be reached for comment.
In 2019, the Tsilhqot’in enacted their own wildlife laws for title land, and while it appears to allow for non-Tsilhqot’in hunters to hunt on title lands, it requires Tsilhqot’in permission. Four outfitters have seen their ability to operate in the region restricted, Ellis said.
Ellis said there had been a proposal to have the provincial government buy out those businesses that are no longer able to get permits, licences and tenures to operate guided hunting, fishing and bear viewing.
“What we’re saying is there’s a cost to reconciliation (that) should be borne by all taxpayers, and not just poor outfitters,” Ellis said.
The Treasury Board recently determined against the buyouts, he said.
“We had been working with the province, hoping that these businesses would be bought out,” Ellis said. “We think there’s a natural place here for the province to broker a deal. The Treasury Board doesn’t.”
Asked to comment, Murray Rankin, minister of Indigenous Relations and Reconciliation, suggested it was “premature” to rule out buyouts.
“Those reports are premature,” he said in a written statement to BIV News. “We are still actively working on this issue. I know that finding solutions has taken longer than many would like and that it is frustrating.
“But we are committed to continuing to work through the issues raised by the court’s declaration including those related to guide outfitters.”
Roger William, chief for the Xeni Gwet’in, said his people are open to the idea of granting permits to guide outfitters to conduct hunting on Tsilhqot’in title lands.
“I think there was going to be some meetings and agreements with guiding outfits, if they can continue,” William said.
However, there are areas considered sacred to the Xeni Gwet’in that will be off-limits to hunters.
“There might be a renewal of tenures in a given area, and we may reshape the boundary,” he told BIV News. “There might be some changes in there where some sacred sites, some cultural sites that we’ll probably circle, or put a boundary around that we don’t want tenure in those areas.”
However, Ellis said there is a broader issue beyond the South Chilcotins.
The Tsilhqot’in are the only First Nation in B.C. to have proven aboriginal title through the courts. But in some of its dealings with First Nations in reconciliation agreements, the B.C. government has been operating as though aboriginal title is a given, so there are broader concerns outside of the South Chilcotin region.
The B.C. government has, for example, surrendered title to all of Haida Gwaii to the Haida First Nation.
“There are many, many tourism businesses across British Columbia that operate with tenures on Crown land…and everyone’s, like, ‘are we next?’” Ellis said.
(This story has been updated with comments from Xeni Gwet'tin Chief Roger William.)
