Both the land and the legal landscape underwent a transformation recently as a result of a Supreme Court of Canada decision. The Court ruled for the first time that an Aboriginal nation has title to a remote piece of beautiful land in British Columbia. The Court wrote: “The nature of Aboriginal Title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the use and the enjoyment of the lands for future generations”. The Court set out what governments and other potential users must do in their dealings with First Nations. Governments are already obliged to consult in good faith with Aboriginal groups asserting title about proposed uses, and accommodate their interests. Now, governments must also justify any incursions into Aboriginal land on the basis of compelling and substantial public interest and be consistent with the Crown’s fiduciary duty to the Aboriginal group. The government’s objective must go no further than necessary to achieve its goal and the benefits that flow from the incursion must not outweigh any harm to Aboriginal interests. The implications of the decision are profound, and will certainly affect the Northern Gateway Pipeline project currently proposed for Alberta and British Columbia, along with many other resource development projects. Governments and businesses will have to enter into substantial and meaningful discussions and negotiations with Aboriginal groups about future uses of land over which they claim title. It can also be expected that many more Aboriginal groups will come forward with land claims, and the negotiation of treaties between Aboriginal peoples and the Government of British Columbia, which have been stalled for over 20 years, will take on a new urgency.
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44
About Teresa Mitchell
