Court’s land claims ruling harms Canada’s business environment – by Gwyn Morgan (Globe and Mail – July 14, 2014)

The Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

On June 26, the Supreme Court of Canada awarded title to a piece of the B.C. Interior roughly the size of Prince Edward Island to the 3,000-member T’silhqot’in First Nation. Initial government and business reaction characterized the decision as merely a clarification of previous lower-court judgments.

That was before it became clear that the land-claim entitlement criteria set out in the 37-page decision, written by Chief Justice Beverley McLachlin, exceeded the worst-case scenario of both governments and industry.

Under previous legal rulings, the “basis of occupation” to be used in establishing aboriginal title was limited to the immediate environs around settlements. The Supreme Court has vastly expanded that, saying: “[A]boriginal title … extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty” (that is, the mid-1800s).

The court justifies this extreme interpretation by stating “… what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question … and the common-law notion of possession as a basis for title.”

The court has, in effect, established a separate legal structure for aboriginals and non-aboriginals that has implications far beyond land entitlements.

Having established the broad criteria for transforming land claims into formal title, the court defines its nature and limitations, saying: “[A]boriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.” The lone exception is when, after consulting and attempting to accommodate, proceeding without consent is backed by “a compelling and substantial objective.”

In addressing the question of what might qualify as such an objective, the court refers to the 1991 Delgamuukw decision, citing “the development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations in support of those aims …” Because natural gas and oil pipelines are transportation infrastructure, this section may prove crucial to both the LNG projects and the proposed Northern Gateway oil project.

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