of the Aboriginal title holder. In the
absence of consent, the Crown may
still impose its decision if it is justified
by a compelling and substantial public
purpose (e.g. important environmental,
social, or economic benefit) and it is
consistent with the Crown’s fiduciary
duty to the Aboriginal group. That
outcome must follow a process
of consultation to determine the
Aboriginal interests and minimize the
infringement. Therefore provincial laws,
like the Forest Act, must be reconciled
with the Aboriginal interests by way of
consent or consultation, coupled with
a compelling public purpose, or else
they will not apply to land subject to
Aboriginal title.
6.
In this case, the province’s
land use planning and forestry
authorizations were inconsistent with
its duties owed to the Tsilhqot’in
people.
IMPORTANT ELEMENTS OF
ABORIGINAL TITLE
The Court reviewed the jurisprudence
since its Calder decision in 1973 (which
recognized the concept of Aboriginal
title) and knit together the threads
from the cases into a cohesive set of
guiding points related to Aboriginal
title. The following propositions were
re-confirmed in this case:
• Aboriginal title is the unique product
of the historic relationship between
the Crown and the Aboriginal group
in question.
• Radical or underlying Crown title is
subject to Aboriginal land interests
where they are established.
overnments can infringe Aboriginal
• Aboriginal title includes the right • Grights
conferred by Aboriginal title
to decide how the land will be
used, the right of enjoyment and
occupancy of the land, the right to
possess the land, the right to the
economic benefits of the land, and
the right to pro-actively use and
manage the land.
but only where they can justify the
infringements on the basis of a
compelling and sub