Court decisions are hurting Aboriginal communities and their ability to use their land

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Appeared in the Vancouver Province, October 6, 2017

In recent months, several major resource projects across Canada, which would have led to billions of dollars of investment, were cancelled. Another project, the multi-billion dollar Trans Mountain pipeline (which carries oil from Alberta to the west coast of British Columbia), faces an eight-day court hearing that started this week in the Federal Court of Appeal, with many of the arguments focusing on whether or not indigenous rights pose larger barriers to the project than realized. What these various situations share in common is that uncertainty about the law on Indigenous rights issues can have real effects.

But what if courts themselves are generating uncertainty? And what if that uncertainty is actually harming indigenous communities?

To answer those questions, some quick history. As noted in a recent Fraser Institute study, the Supreme Court of Canada’s June 2014 decision in the Tsilhqot’in Nation case on Aboriginal title (the right of indigenous peoples to own their traditional lands) seemed to settle some important legal questions. And in some ways it did, in part by clarifying that the past land use of a historically mobile community could ground a modern-day Aboriginal title claim under which the community would be recognized as owning its land. The case of the Tsilhqot’in, a First Nation in B.C., was historic in part because it saw the Court grant Canada’s first-ever judicial declaration of Aboriginal title to specific land.

What matters in the longer-term, though, is not just the result in the specific case but the reasons the Court used in explaining that result. These reasons can be invoked in other cases, or in negotiations to resolve Aboriginal title claims or to address the viability of claims.

There is an open secret in the legal community that the Tsilhqot’in Nation judgment has left literally dozens of uncertainties on the law applying to Aboriginal title. And it has even made some of the uncertainties worse than they were before.

To take one example, past Aboriginal title decisions such as the 1997 Delgamuukw decision saw a cultural restriction imposed on Aboriginal title lands. In that case, the Court said that Aboriginal title lands could not be used today in a manner inconsistent with historic cultural uses that had been used to prove the title claim. For no obvious reason, the Court even offered examples, including that land once used for hunting could not become the site of a parking lot.

Every time I read that part of the judgment, I’m reminded of the Joni Mitchell song about parking lots. But recognizing Aboriginal ownership of land should be serious business. And why Aboriginal land owners, who might wish to engage in commercial activity, should be uniquely disqualified from having parking lots for their customers has never been clear.

The 2014 Tsilhqot’in Nation decision repeats some parts of the legal tests in Delgamuukw and slightly reformulates other parts—but is ambiguous on whether or not the cultural restriction elaborated in Delgamuukw continues to apply. Imagine owning land on which there are two competing Supreme Court of Canada decisions on whether you can build a parking lot or not.

Moreover, the Tsilhqot’in Nation decision develops a new restriction on the use of Aboriginal title lands. Because they are owned by the community, it says, lands must be used in such a way that their value is maintained for future generations. What that unprecedented restriction means is extraordinarily unclear. The Court admits as much by saying the new restriction can be sorted out on a case-by-case basis.

Clearly, indigenous communities would benefit from greater certainty on the property rights they hold in their own land. Those contemplating particular developments would know if they are legal or not. Outside investors contemplating investing on land subject to Aboriginal title claims would know if anything outright bars the contemplated use of land involved.

In summary, after litigation that involved tens of millions of dollars in litigation costs, the Court failed to answer these questions and may have made legal uncertainties worse. It’s time to look beyond the courts for political leadership that works to achieve greater certainty for everyone.

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