Thursday, June 26, 2014

Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 is an extraordinarily important decision.  Critically it gives aboriginal groups the exclusive power to decide on the use of lands forever. 

The decision recognized a First Nation's title to a specific tract of land -- with major implications for contentious energy projects like the Northern Gateway pipeline.  The decision will  make it easier for First Nations to establish title over lands that were regularly used for hunting, fishing and other activities. 

A legal summary of some of the decision follows:

The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35  of the Constitution Act, 1982 . This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  This s. 35  framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.   

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