Montreal Gazette

Aboriginal title ruling has no effect on private property

But ‘parks are up for grabs,’ expert says

- ROB SHAW

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.

 ?? POSTMEDIA NEWS FILES ?? In a decision this week, the Supreme Court of Canada granted title to more than 1,750 square kilometres to the Tsilhqot’in First Nation in B.C., which could have implicatio­ns for pipelines, mines and forestry operations.
POSTMEDIA NEWS FILES In a decision this week, the Supreme Court of Canada granted title to more than 1,750 square kilometres to the Tsilhqot’in First Nation in B.C., which could have implicatio­ns for pipelines, mines and forestry operations.

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