Aboriginal Title... (cont’d)
In a unanimous decision, the Court
c o n fir med the Tsil h q ot ’in hol d
Aboriginal title to a significant
portion of the land they claim as
QUESTIONS RAISED ON
THE APPEAL
In the decision, the Court considered
the following important questions:
their traditional territory. This is the
first judicial finding of Aboriginal title
anywhere in Canada. The principles set
out in the decision will affect land use
and resource development throughout
the province. They will also affect the
province’s approach to governance of
the land base and its resources.
Little “new” law was established, but
important questions were answered
that help clarify the application of
existing legal principles. The main
implications are that the need for
attention to consultation, consent,
and justification has increased. These
concepts were already an integral
part of the Crown’s constitutional
obligations to deal with Aboriginal
groups and their rights honourably.
The William decision has confirmed
how these concepts are engaged in
the Crown–First Nation relationship
to Aboriginal title – both before and
after a claim is proven. The Court also
confirmed the province’s ability to
enact laws affecting Aboriginal title
and described the process to do so
in a way that discharges the Crown’s
constitutional obligations.
In brief, the decision raises the level of
Crown engagement by clarifying the
geographic scope of Aboriginal title
and by elaborating on the content of
Aboriginal title and how it interacts
with Crown governance.
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1. W
hat is the test for
Aboriginal title to land?
2. I f title is established, what
rights does it confer?
3. D
oes the British Columbia
Forest Act apply to land
covered by Aboriginal
title?
4. W
hat are the constitutional
constraints on provincial
regulation of land under
Aboriginal title?
5. H
ow are broader public
interests to be reconciled
with the rights conferred
by Aboriginal title?
The Court’s answers to these questions
help resolve uncertainty about how
the Crown and First Nations should
interact on decisions affecting the
use and governance of the land and
resources affected by Aboriginal title.
As themes that run throughout the
decision the Court stressed the need
for a “proportionate balancing” of
interests and a “governing ethos of
reconciliation.”
KEY FINDINGS
The Co ur t re vers ed the B r i tis h
Columbia Court of Appeal’s 2012
decision on Aboriginal title and made
the following key findings:
1.
Aboriginal title flows from
occupation in the sense of
regular and exclusive use of land.
I N D U S T R Y U P D AT E
Occupation, continuity, and exclusivity
are the key elements. The use need
not be intensive, but must be
consistent with the function of the
land. The common law and Aboriginal
perspectives on land ownership must
be given equal weight.
2.
In this case, Aboriginal title
is established over the area
designated by the Trial Judge – i.e.
about 1,700 km2 of the more than 4,000
km2 claimed by the Tsilhqot’in. Under
this “territorial” approach, Aboriginal
title is not confined to specific sites of
settlement, but extends throughout
the territory that was regularly used
for hunting, fishing, or exploiting
resources and over which the group
exercised effective control. Importantly,
the Tsilhqot’in did not include privately
owned land in their territorial claim,
so how Aboriginal title reconciles with
privately owned land is a question for
another day.
3.
Aboriginal title confers the right
to use and control the land and
to reap the benefits flowing from it. So,
First Nations have governance rights
and a right to the economic benefits
associated with the land, not just the
right to follow traditional practices on
that land.
4.
Where title is asserted, but has
not yet been established, the
Crown must consult with the group
asserting title and, if appropriate,
accommodate its interests.
5.
Once Aboriginal title is
established, section 35 of
the Constitution Act, 1982 permits
incursions on it only with the consent