CPABC Industry Update - Fall 2015 | Page 29

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