Lawsuits drive ranchers’ call for DRIPA’s repeal

KAMLOOPS – A raft of lawsuits is a symptom of the province’s dysfunctional reconciliation process, ranchers say, and point to the need for a reset.

Exhibit A is a 10-year-old land claim the Stk’emlupsemc te Secwepemc Nation (SSN), made up of the Tk’emlúps and Skeetchestn bands, filed in BC Supreme Court in 2015 to assert Aboriginal title over 1.25 million hectares of BC’s Interior, including the entire city of Kamloops and Sun Peaks ski resort.

The move was originally seen as pushback against plans for the controversial Ajax mine just south of Kamloops. The province declined to issue an environmental certificate for the mine in December 2017, but the land claim continued to slowly make its way through the courts with a case conference being held as recently as September. No date has been set for the trial.

But following BC Supreme Court‘s decision in August recognizing the Cowichan Tribes’ Aboriginal title over 300 hectares of land in Richmond, the case has come back to the fore.

Cattle ranching is the main agricultural activity within the SSN claim area. Ranch operations have a home base with fee simple title, but the backbone of their operations is range land tenure. Depending on the conditions, cattle can spend from six to 10 months grazing Crown land.

To reassure ranchers in the wake of the Cowichan Tribes decision, the Tk̓emlúps te Secwépemc and the City of Kamloops released a joint statement on December 12.

“The fundamentals of property ownership in Kamloops remain unchanged, and day-to-day life continues as normal,” it states. “The SSN Aboriginal title claim remains in early stages. No declarations have been made, and the claim does not seek private or city-owned land.”

But a precedent exists in the Supreme Court of Canada’s 2014 decision recognizing Aboriginal title over lands claimed by the Tsilhqotʼin Nation. While no private property has been affected, the Tsilhqotʼin hold Aboriginal title to land that includes grazing tenures previously held between ranchers and the provincial government, and they have been impacted.

Grazing licences within the Tsilhqot’in title area have been fully transferred to the nation for administration. Tenure length has changed from 25 years to three years, and the BC Cattlemen’s Association says there have been added costs for tenure administration.

BC Cattlemen’s assistant general manager Elaine Russell says that cattlemen hold some 200 Crown tenures within the SSN claim area, which include grazing leases, grazing licences and woodlots. Changing them could have a significant effect on a rancher’s business.

Kamloops Stockmen’s Association president Paul Devick, also a director with BC Cattlemen’s, ranches just north of Kamloops on the way to Sun Peaks, property his family has tended for 120 years.

The Devicks have fee-simple title to 4,500 acres and a licence to use Crown land for range that covers 40,000 acres. That land base supports a herd of 970 cow-calf pairs, a 1,000-head feedlot and a provincially inspected abattoir.

“It’s the uncertainty that’s the biggest problem,” says Devick. “One day I read something that is very worrisome, and the next day the government says something else.”

The way to settle this is through all parties working together, not through litigation and statements in the media, he told Country Life in BC.

“As far as I am concerned, this whole process right now is driving a nail right through reconciliation,” says Devick.

He notes that any change in the tenure system could affect the range his cows use, and their access to water.

“If any of our fee-simple land is affected, we have nothing; we can’t grow the feed for our cows, and we can’t bank for our business,” he says.

The uncertainties increased following a December 5 decision from the BC Court of Appeal declaring BC’s Mineral Tenure Act, and specifically, the online mineral claim-staking system it permits, is inconsistent with the Crown’s duty to consult as outlined in the province’s Declaration of the Rights of Indigenous Peoples’ Act (DRIPA).

The impacts could be far-reaching, as it sets up all provincial statutes to fall.

BC Cattlemen’s president Werner Stump says that having DRIPA “overpower” all other provincial legislation has producers worried.

“Absolutely, this could affect all other acts and regulations we work under, from the tenure application process to water licences, dam registration, even replacing burned-out fencing,” Stump points out. “Every piece of legislation is no longer what we have come to understand.”

Reconciliation is very important to Stump and all members of BC Cattlemen’s, but he says there’s a larger issue in play.

“What direction are we going here in the province?” he asks. “When we are looking at government-to-government decision-making and having First Nations as equal partners with our government, we are putting leaders of a small percentage of the population whom the majority did not elect and are not responsible to us on an equal footing with leaders that we did elect. How is that the definition of democracy?”

It also deepens division rather than contributing to reconciliation.

“We are not reconciling different cultures in society with the pathway we are following now,” he says.

BC Premier David Eby is on record saying he will consider amending DRIPA to avoid it being used as a tool to strike down other legislation.

“That might be one way to go,” Stump says. “But I suggest there is a much cleaner way. We need to repeal DRIPA and start from scratch and put together a solution that is economically sustainable and works for all of us here in British Columbia.”