The National Post is Canada’s second largest national paper.
Aboriginal communities’ land claims have become much more viable, making future resource development iffier
The Supreme Court of Canada has just released its latest take on the rules on Aboriginal title – and the first declaration of Aboriginal title in Canadian history. Its groundbreaking decision concerning the Tsilhqot’in Nation’s claims has the potential to reshape aspects of Canadian resource development more broadly. To understand why, we need to back up a bit to understand what the case has changed on Aboriginal title and why that matters.
Aboriginal title is the form of ownership Aboriginal communities hold over unceded lands that they regularly and exclusively used in the past. It is not identical to but is analogous to the fee simple title that private landowners hold, with the important difference that the courts have always considered Aboriginal title land to be collectively owned by a particular Aboriginal community.
The potential for Aboriginal ownership claims of this sort was first suggested by the Supreme Court of Canada in its 1973 decision in the Calder case. The addition of an Aboriginal rights section in the 1982 constitutional amendments committed Canada to such land rights being constitutionally guaranteed – with very little clear sense as to the implications that would result.
In the Tsilhqot’in case, which has been making its way through the courts over the past decade, the trial judge suggested that the test developed in past decisions was too strict and would unjustly reduce the scope of Aboriginal title to lands the size of “postage stamps.” Although procedural aspects of the case prevented him from making a declaration of Aboriginal title, his judgment came the closest to doing so that any Canadian court has – until now.
The Supreme Court’s judgment now says that Aboriginal title will be established based on regular and exclusive use of land prior to Canadian sovereignty. That regular and exclusive use may even have been semi-nomadic in nature. In areas where land claims have not been settled – such as much of British Columbia – this decision has major implications. Various Aboriginal communities’ land claims suddenly look much more legally viable.
Where title exists, development would normally take place on that land with the consent of the community. That said, the Court has a dozen paragraphs in which it carefully enunciates a test for when government can, in certain circumstances, override Aboriginal title based on a compelling and substantial public interest.
For the rest of this column, click here: http://business.financialpost.com/2014/06/26/first-nations-tsilhqotin-supreme-court/?__lsa=6d59-2d4d