Potential court case looms as First Nations dispute territorial history of key Chilcotin fishing site

Winding through the Chilcotin Plateau southwest of Williams Lake, B.C., Farwell Canyon, with its dramatic cliffs and blue-green waters teeming with fish, has been a place of cultural significance and beauty since time immemorial.

In the summer months it's a hub of activity, including fishing the Chilko salmon in one of British Columbia's strongest remaining salmon runs. 

It's a landscape full of rich and complicated history — and now, long-standing tensions are flaring between neighbouring First Nations over the status and use of the canyon.

Both the Williams Lake First Nation (WLFN) and the Tŝilhqot'in National Government are claiming it as part of their traditional territory. 

As talks have stalled between the two nations, public statements from both leadership groups asserting those claims have come in quick succession, with Tŝilhqot'in National Government Tribal Chair Chief Joe Alphonse saying he's not afraid to go to court over the issue.

But Indigenous legal experts worry the colonial legal system will offer few solutions to a conflict that in many ways has been exacerbated by colonial violence and dispossession. 

Simmering conflict

Earlier this month, WLFN announced plans to conduct research and planning work in Farwell Canyon, including archaeological surveys, environmental data collection and wildfire studies. 

Just days later, the Tŝilhqot'in countered with a statement asserting its claim to the canyon, saying it opposes "archaeological work or any other disturbance" without its approval.  

"I don't think [WLFN] are being entirely honest or truthful. They are not doing this for the benefit of creating a good plan for the areas. They're doing this to pick a fight with Tŝilhqot'in," Alphonse said. 

WLFN Kúkpi7 Willie Sellars said this latest process is just about giving his people peace of mind that the canyon is part of their traditional territory.

"Historically we occupied those lands for thousands of years, but post-1865 we were decimated with smallpox," Sellars said.

He says the Secwe̓pemc peoples, of which his nation is part, consolidated their smaller populations out of necessity but did not give up claim to the area and continued to use Farwell Canyon for fishing and cultural practices.

Meanwhile, the Tŝilhqot'in says it has been living and using the area for more than 150 years, creating partnerships with local and federal governments to manage fishing in the area. 

Alphonse believes his community's past experience in the legal system will be to their advantage if they move ahead with a court case. In 2014, the Supreme Court of Canada affirmed Indigenous title to more than 1,700 square kilometres of territory in the Chilcotin. 

"That courtroom is not our process, but we've been there and we've been successful … we won't shy away from that [process]," said Alphonse.   

But Sellars says the situation is more complicated than that. He says communities of the northern Secwe̓pemc were forced inland in the late 1800s following colonization and, as they left, the Tŝilhqot'in moved in. 

"We had encroachments all along our western boundary and there was nothing we could do about it because of the colonial system that was implemented and in effect at the time," Sellars said.

He said the dispute could have been resolved long ago, if not for the disruption and suppression of the colonial government. 

But he says no one is "going to war" and he would like to see the nations avoid court. 

Legal limitations

Indigenous legal expert Merle Alexander, a lawyer from the Kitasoo Xai'xais First Nation, says the colonial court system often falls short when it comes to Indigenous rights and title, especially over areas of shared cultural significance.  

But Alexander said there isn't currently a way to resolve these disputes other than the courts, and judges don't typically have the training needed to understand the nuances of issues, or incorporate oral histories. 

"The law is a bit ham handed," he said.

Alexander believes both the WLFN and Tŝilhqot'in seem to have a legitimate claim to the territory, so whatever the courts decide might not end up serving either group.

"It will be somewhat artificial to draw a historical line in the sand to sort of say when one nation's history begins and another ends," he said.

Going through the courts presents a number of potential outcomes, none of which are ideal, he added.

The courts could rule in favour of one group, which could lead to lengthy appeals, or the courts will decide both nations have some claim over the land and require them to come up with an agreement through another resolution process.

"For lots of First Nations … they end up right where they would have been at the starting point," Alexander said. 

But that can have benefits, he added, because neither group can then deny the claim of the other and that mutual understanding can provide a first step in moving forward.

Both the WLFN and Tŝilhqot'in are working within a colonial system that Alexander describes as adversarial. 

He would like to see something that honours both Tŝilhqot'in and the Secwe̓pemc laws, traditions, and values.

"In those commonalities is where that agreement would be," he said.