The Lax Kw'alaams First Nation in B.C. is upping the ante. On Monday, it filed a lawsuit claiming aboriginal title on territory where a liquefied natural gas consortium wants to build an export terminal, a suspension bridge and a jetty to a dock for tankers carrying LNG to Asia.
In 2014, the Supreme Court of Canada for the first time recognized a native community, Tsilhqot'in, as having aboriginal title. This concept signifies an entity that is both a form of government and communal property at the same time.
If Lax Kw'alaams achieves a victory in this second case, it might yet come to regret it. The Supreme Court (including Chief Justice Beverley McLachlin, who recently spoke about the "cultural genocide" inflicted upon native Canadians), said that aboriginal title can be "infringed" upon if there is a "compelling and substantial public purpose." But the court had no occasion in the Tsilhqot'in case to say what such a compelling purpose might look like.
It's fair to say that the B.C. government believes the potential LNG industry to be a decidedly compelling prospect.
In contrast to most Canadian provinces, very few treaties were reached with native communities in B.C. in the 19th century. In 2005, former premier Gordon Campbell commenced an admirable effort to make up for lost time, encouraging the creation of new treaties. Unfortunately, most of the resulting negotiations have bogged down. The movement to recognize aboriginal title in some areas of B.C. is partly an attempt to try another route.
Courts do not usually move quickly, especially when they have to deal with often unclear historical evidence. Still, perhaps new aboriginal-title litigation should be welcomed, now that treaty-making has almost ground to a halt.
In particular, some principles and rules on the meaning of the words "compelling and substantial public purpose" would be helpful. But eventual court decisions (if any) may yet bitterly disappoint the B.C. government, the Lax Kw'alaams and other First Nations, and enterprises such as Pacific NorthWest LNG (a group led by Petronas, a huge Malaysian oil-and-gas company), which wants to build the suspension bridge in question.
Of course, good-faith negotiations, conducted with all deliberate speed, would be best of all.