CPABC Industry Update - Fall 2015 | Page 30

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 | “ 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