The Supreme Court of Canada’s aboriginal-title judgment on Thursday is a balanced decision about the balancing of interests. It should not stifle economic development in British Columbia, or anywhere else in Canada. Nor does it necessarily doom the Northern Gateway pipeline project.
The Tsilhqot’in Nation are the first native community in Canada to achieve judicial recognition of aboriginal title – a kind of group ownership of land in the absence of any treaty with the federal Crown.
Chief Justice Beverley McLachlin and her colleagues have now given greater elaboration to the reasoning in the Delgamuukw case of 17 years ago – in which Antonio Lamer, the former chief justice, wrote that aboriginal title is compatible with economic development, including mining, hydroelectric power, the building of infrastructure and the “general economic development of the interior” of B.C. Pipelines were not mentioned in that passage, but similar considerations apply.
The Supreme Court has now contributed greater definition to the criteria for establishing that a native community has aboriginal title: sufficiency of use, continuousness and exclusivity. For example, if a group of bands has hunted, fished, gathered and lived in an area since before the time that a European government – British or French – asserted its sovereignty, that is a continuous use.
But once an instance of aboriginal title is recognized and its geographic boundaries set, the Crown does not simply disappear. There can still be an “incursion” or an “infringement” if it is justified by a “compelling and substantial public purpose” – and Chief Justice Lamer’s words show that those public purposes include private-enterprise projects of economic development. In other words, aboriginal title for many treaty-less groups absolutely exists – and yet control over the land conferred by title is not absolute.
The complexity of the law, and the fact that these broad principles must be applied on a case-by-case basis, mean that lawyers will flourish for years to come. The Tsilhqot’in case offers a template for resolving hundreds of native land claims, particularly in B.C. All parties now have a much better sense of the law. It is to be hoped that, having been given this roadmap, native groups and governments will use it to negotiate rather than litigating. Don’t count on it, though.