Aboriginal title ruling has no effect on private property
But ‘parks are up for grabs,’ expert says
VANCOUVER — A historic Supreme Court of Canada decision this week on the land title rights of the Tsilhqot’in First Nation has left aboriginal leaders, governments and legal experts analyzing the ramifications of what some have called the most important court ruling on First Nations land rights in British Columbia’s history.
The high court granted title to more than 1,750 square kilometres of rugged land to the Tsilhqot’in, in the process leaving profound implications for pipelines, mines, forestry operations and other resource projects already built or proposed for land that may be part of future aboriginal title claims.
Q: What does this mean for houses or businesses that are on land that might be part of future First Nations land claims?
A: “This decision has no effect on private property rights,” said Dominique Nouvet, an aboriginal lawyer at Woodward & Company in Victoria, which acted on behalf of the Tsilhqot’in at the Supreme Court.
The few homes and business in the lands near Alexis Creek that the Tsilhqot’in won title over were deliberately excluded from the case.
Generally, aboriginal title doesn’t overrule private property anyway, say legal experts.
The high court didn’t specifically address the issue, but it may form part of future rulings for land title claims in urban areas.
Q: What does the court ruling mean for the treaty process between First Nations and the provincial and federal governments?
A: Experts are split on the issue, with some saying it will jump-start the slow-moving and often-criticized treaty process, while others admit there’s the potential First Nations could sidestep that logjammed process in favour of land title claims.
There have been only four treaties signed in British Columbia in about 20 years, and First Nations have criticized the process as expensive, bureaucratic and flawed.
Q: What about Crown land al- ready being used for a purpose? Or even a provincial park?
A: There’s nothing stopping a First Nation from claiming title over Crown land currently being used, or over a park.
“In theory parks are up for grabs in an aboriginal title claim,” Nouvet said. “The First Nation, if it wins, would get to decide how they want to use the land, and the First Nation would not be confined to keeping it as a park.”
But the high court also reconfirmed that there are some land uses that are so important to the larger public good — such as power generation and environmental protection — that a government can justifiably infringe upon an aboriginal claim and force a project, if it follows the right process.