In last June's controversial Supreme Court of Canada
decision in Tsilhqot'in Nation v. British Columbia,
the court made a declaration of Aboriginal title, but did not
provide much guidance with respect to how the Tsilhqot'in could
use its Aboriginal title lands. In this regard, the court did
little more than state that a First Nation could not substantially
deprive future generations of the benefit of those lands. The
court's concern with future generations relates to the
collective nature of 'Aboriginal title' rights.
Similarly, the concern with future generations of Aboriginal
title holders also manifests itself in the context of the
Crown's ability to "justify" an infringement of
Aboriginal title. Before the Crown can permit a project or pass
laws in relation to Aboriginal title lands, the Crown is first
obliged to satisfy a three-part justification test. The third
branch of this test requires the Crown to ensure that any
infringement of Aboriginal title is consistent with the Crown's
fiduciary obligations to the holder of the Aboriginal title. This
requires the Crown to act in a manner that recognizes the
collective nature of Aboriginal title. So, just as current
generations of an Aboriginal title holder cannot use its Aboriginal
title lands in a manner that would substantially deprive future
generations of the benefits of the land, neither can the Crown.
In Tsilhqot'in, the court does not do much to
clarify the uses of Aboriginal title lands that are reconcilable
with the ability of succeeding generations to benefit from
Aboriginal title lands and is largely content to say that this is
an issue that the law would address on a case-by-case basis as
Earlier comments of the court from its 1997 decision in
Delgamuukw v. British Columbia shed a little more light on
the matter. In that ruling, the court explained that while holders
of Aboriginal title could use their lands for a variety of
non-traditional, modern purposes, any use of the land that is
irreconcilable with the nature of the First Nation's original
occupation of, and relationship to, the lands that gave rise to its
Aboriginal title in the first place is not permissible. So, to use
the court's example, if a First Nation established a claim to
Aboriginal title through historical occupation of the lands for the
purpose of hunting, then the First Nation may not use those lands
for strip mining since this was probably irreconcilable with that
First Nation's historic relationship to the lands.
When read in the context of Delgamuukw, the court's
decision in Tsilhqot'in tells us that the holder of
Aboriginal title cannot use, and the Crown cannot justify an
infringement, of Aboriginal title lands that is irreconcilable with
the nature of the First Nation's historic occupation of and
relationship to those lands. Proposed uses of Aboriginal title
lands that are irreconcilable with the nature of the First
Nations' historic occupation of and relationship to the
Aboriginal title lands is simply not permitted and there's
nothing that the First Nation or the Crown can do about it.
Except for one thing. The court made clear in both
Tsilhqot'in and Delgamuukw that the holder of
Aboriginal title lands may alienate those lands to the Crown for
valuable consideration and, thereby, convert Aboriginal title lands
to non-Aboriginal title lands. This would allow uses of (formerly)
Aboriginal title lands that were irreconcilable with the nature of
the First Nations' historic occupation of and relationship to
the lands. One might see this as an interesting exception given
that the conversion of Aboriginal title lands to non-title lands
would absolutely seem to come at the expense of future generations
of the First Nation.
But this gets to what is probably the court's primary
objective when it comes to the reconciliation of Aboriginal rights
with Crown sovereignty: to promote settlement treaties. Without the
ability of First Nations to lawfully surrender Aboriginal title
rights to the Crown, there is probably not much likelihood of
reconciling Aboriginal rights with Crown sovereignty.
Originally published in the September/October 2014 issue of
BC Forest Professional magazine.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).