Monday, July 14, 2014
This is a little bit late, but it deserves the notice of the property world. At the end of June, the Canadian Supreme Court released a major decision about the land rights of aboriginal peoples. The case, Tsilhqot’in Nation v. Her Majesty the Queen, firmly establishes First Nation claims to a large and defined swath of British Columbia. In practice, this means that efforts to mine, build pipelines, or develop areas in many areas of BC will be subject to the interests and title of First Peoples.
BC resident and property-prof extraordinaire, Doug Harris, also had a great Op-Ed in the Vancouver Sun explaining the legal issues. The whole thing is worth reading, but there's a quick summary of the case:
The Supreme Court of Canada recognized a large, contiguous land-mass in central B.C. as aboriginal title lands in the Tsilhqot’in Nation vs. British Columbia case. It is the first time a Canadian court has recognized aboriginal title in a specific territory.
The SCOC also confirmed the broad content of the right. Aboriginal title is a property interest that is derived from exclusive occupation and amounts to a right to exclusive use. Aboriginal peoples are not restricted to using title lands for traditional purposes. Only those uses that would deny future generations the continuing benefit of the land are prohibited.
These elements of the SCOC judgment have received much early attention, and justly so. They will have profound effects on the province and the country.
But the next part of the judgment, described as the justifiable infringement test, also deserves attention. It is here the SCOC has located the balancing of aboriginal title with other rights and interests.
The justifiable infringement test arises once a First Nation has established aboriginal title. At this point, the Crown (either the federal or provincial government) has an opportunity to justify infringements of that title.
The fact aboriginal title may be infringed reveals that it — as other constitutionally protected rights — is not absolute. The recognition of aboriginal title must include some balancing with other rights and, the SCOC indicated, other interests.
(HT: I thank the ever-generous Nick Blomley, Doug Harris, and Matt Harrington for bringing this case to my attention. Pic: The Musqueam House Post in front of the law school at the University of British Columbia)