On land title, which road will aboriginal groups take? – by Jeffrey Simpson (Globe and Mail – April 11, 2015)

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.

It will take some time to measure the impact of the Supreme Court of Canada’s judgment on aboriginal title, and the significant additional powers it gives aboriginal groups with that title.

The judgment, nine months ago, involved the Tsilhqot’in Nation, with about 3,000 people. They had been fighting commercial logging since 1983 in the territory they claimed as theirs.

Courtesy of the Supreme Court, their aboriginal title was affirmed, which meant in layman’s language almost a de jure veto over anything done in that territory. The ruling was, of course, hailed by aboriginal leaders everywhere, but especially in British Columbia where there are few treaties.

Yes, the court said governments could assert some power to allow a development with a “compelling and substantial public purpose.” But in the real world, as opposed to the one of legal reasoning, such a showdown between a government’s “compelling and substantial public purpose” and an empowered aboriginal group would be messy at best and a stalemate at worst. A government would be very reluctant to put the amorphous “public interest” against a narrow but determined aboriginal one.

An optimist would say the court’s ruling merely upped the requirements for any government or private interest wishing to do business on land claimed by aboriginals to take very seriously indeed their concerns.

Some business leaders in B.C. report that aboriginal leaders are anxious to cut deals because they understand the impoverishment of their peoples. Treaties and grand declarations and Supreme Court rulings are fine, but they are very far removed from indigenous people’s more urgent requirements of employment, money and training.

So the Tsilhqot’in ruling, the optimists believe, will give aboriginal groups more confidence and non-aboriginal groups more certainty about how to enter into negotiations.

The optimists, however, will have trouble digesting the Affirmation of the Nemiah Declaration issued last month by the Tsilhqot’in Nation representing six communities. They were the victors before the Supreme Court, and the Nemiah Declaration indicates how they will use the ruling.

Forget any commercial activity in the Tsilhqot’in Nation territory. The declaration states there shall be no commercial logging, no “mining or mining explorations,” “no commercial road building,” “no dam construction.”

For the rest of this article, click here: http://www.theglobeandmail.com/globe-debate/on-land-title-which-road-will-aboriginal-groups-take/article23878683/

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