Aboriginal Title... (cont’d)
• Occupation sufficient to ground
Aboriginal title is not confined to
specific sites of settlement but
extends to tracts of land that were
regularly used for hunting, fishing,
or otherwise exploiting resources
and over which the group exercised
effective control at the time of
assertion of European sovereignty.
• The Courts should allow a flexible,
functional approach to how
Aboriginal title cases are framed and
pleaded.
“What is at stake is nothing less than
justice for the Aboriginal group and its
descendants, and the reconciliation
between the group and broader society.
A technical approach to pleadings would
serve neither goal. It is in the broader
public interest that land claims and
rights issues be resolved in a way that
reflects the substance of the matter.”
RECONCILING FEDERAL
AND PROVINCIAL
JURISDICTION
In its analysis of the application of
provincial laws to Aboriginal title land,
the Court reversed the finding of the
trial judge who held that the provincial
Forest Act did not apply because, under
the doctrine of interjurisdictional
immunity, Aboriginal rights are “akin
to treaty rights” which are at the core
of the exclusive federal power over
“Indians.”
The Court expressed its view of the
design of the doctrine as follows:
page 30
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“ The doctrine of interjurisdictional
immunity is designed to deal with
conflicts between provincial powers and
federal powers; it does so by carving out
areas of exclusive jurisdiction for each
level of government. But the problem
in cases such as this is not competing
provincial and federal powers, but
rather tension between the right of the
Aboriginal title holders to use their land
as they choose and the province which
seeks to regulate it, like all other land in
the province.”
both the federal and provincial level.
Provincial laws of general application,
including the Forest Act, should apply
if they meet the Sparrow test of
justification. The Sparrow approach
is the appropriate and sufficient
“constitutional lens” through which to
view and resolve any conflict between
provincial laws and Aboriginal rights.
The Court was concerned that applying
interjurisdictional immunity would
create “serious practical difficulties,”
namely, it would:
1.
in two different tests for
• result
assessing the constitutionality
of provincial legislation affecting
Aboriginal rights. The justification
process established in Sparrow
would be insufficient to apply
provincial laws if they infringed
Aboriginal rights.1
“uneven, undesirable results
• pandroduce
may lead to legislative vacuums.
The result would be patchwork
regulation of forests – some areas
of the province regulated under
provincial legislation, and other
areas under federal legislation or no
legislation at all.”
In the end, the Court decided the
Sparrow approach should govern at
1
PRACTICAL IMPLICATIONS
OF THE COURT’S
DECISION
ROWN’S DUTY TO
C
CONSULT ARISES MORE
OFTEN
The decision does not change the
basic principles of the Crown’s duty to
consult with First Nations, but it will
compel the Crown to engage that duty
more often and more intensively. The
geographic scope of Aboriginal title
is now defined more broadly. Since
Aboriginal title engages a higher level
of consultation, that higher level will
be engaged more often, particularly
when establishing legislation and
policies to govern land and resources.
2.
SSESSING THE
A
STRENGTH OF
ABORIGINAL TITLE
CLAIMS
The question of who is entitled to be
consulted will remain challenging.
The Crown has a