Confusion reigns on aboriginal rights when court rulings meet reality – by Jeffrey Simpson (Globe and Mail – July 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.

VANCOUVER — A year and a bit later, people with good intentions and big brains in British Columbia are still trying to figure out the impact of the latest Supreme Court aboriginal-rights decision.

Learned law articles have been penned. Certain aboriginal spokesmen have told the provincial government, as a consequence of the decision, to recognize aboriginal title everywhere and get on with it. Resource companies and other private-sector enterprises don’t quite know what to make of the Tsilhqot’in decision.

Tsilhqot’in essentially recognized aboriginal title over a swath of territory for a previously nomadic aboriginal group. In this territory, with a few restrictions, the group now has de jure sovereignty, a precedent that, if extended over time, would leave B.C. pockmarked with little self-governing, largely sovereign aboriginal territories over which the Crown’s writ would barely run.

What’s clear about the Tsilhqot’in decision – and the long trail of previous aboriginal-rights cases – is that it makes for steady and remunerative work for lawyers. Essentially, the courts, and especially the Supreme Court of Canada, are making laws in this field.

Judge-made law, not political decision-making or government-to-First Nation negotiations, is setting the rules and then changing them with each new court decision.

The justices of the Supreme Court view issues from 35,000 feet. Their knowledge of on-the-ground realities is perforce limited and their interest in the actual or potential impacts of their decisions seems equally limited.

The aboriginal rulings are reminiscent of former justice Bertha Wilson’s comment in her famous Singh decision on refugee-determination policy when she dismissed possible complications flowing from her ruling as matters of “administrative inconvenience.”

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