Land ques­tion should be mat­ter of con­cern to all

If gov­ern­ment won’t de­cide, courts will, writes Troy Hunter.

Vancouver Sun - - CITY - Troy Hunter is an as­so­ciate lawyer at Reme­dios and Com­pany, a Van­cou­ver law firm, where he prac­tises fam­ily and civil lit­i­ga­tion, in­clud­ing abo­rig­i­nal law. He is a mem­ber of the Ktu­naxa First Na­tion from the Koote­nays.

Most of B.C. is built on un­ceded abo­rig­i­nal land, which means that ab­sent a treaty, the prov­ince’s le­gal foun­da­tion is on shaky ground. For this rea­son, Bri­tish Columbians ought to be con­cerned about the slow pace of rec­on­cil­i­a­tion of abo­rig­i­nal rights and ti­tle.

Since the Bri­tish North Amer­ica Act es­tab­lished Canada as a coun­try 150 years ago, it’s well past time abo­rig­i­nal rec­on­cil­i­a­tion in the prov­ince of B.C. was achieved.

As Jus­tice Mary Southin of the B.C. Court of Ap­peal com­mented in ref­er­ence to Skeetch­estn In­dian Band v. Bri­tish Columbia: “Sooner or later, the ques­tion of whether those who hold cer­tifi­cates of in­de­fea­si­ble ti­tle, whether to ranch lands on Kam­loops Lake or to a small lot with a house on it on Rail­way Av­enue in the Vil­lage of Ashcroft or an of­fice tower on Ge­or­gia Street in the City of Van­cou­ver, are sub­ject to claims of abo­rig­i­nal right must be de­cided.”

Ac­cord­ing to the Supreme Court of Canada, in the Tsil­hqot’in case, where abo­rig­i­nal ti­tle is rec­og­nized, the prov­ince’s ju­ris­dic­tion is cur­tailed be­cause “abo­rig­i­nal rights are a limit on both fed­eral and pro­vin­cial ju­ris­dic­tion” and there must be a bal­anc­ing of abo­rig­i­nal rights ver­sus the abil­ity of the prov­ince to reg­u­late, for ex­am­ple, fire or pest con­trol.

In cases where abo­rig­i­nal ti­tle is rec­og­nized, the prov­ince has no ju­ris­dic­tion, and con­sent of First Na­tions is re­quired for re­source devel­op­ment as set out in the 2014 Tsil­hqot’in Supreme Court of Canada de­ci­sion.

Ap­proval of ma­jor projects, such as pipe­lines, re­quire the con­sent of First Na­tions in any lo­ca­tion where abo­rig­i­nal ti­tle is es­tab­lished, and ab­sent con­sent, dam­ages are to be paid to the proper rights-hold­ers, un­less there is a com­pelling and sub­stan­tial pub­lic in­ter­est ob­jec­tive with a rec­on­cil­i­a­tion goal that bal­ances the in­ter­ests of First Na­tions and the broader pub­lic.

With the help of lawyer Jack Wood­ward, who was an in­stru­men­tal part of the le­gal team in the first and only case in Canada where abo­rig­i­nal ti­tle was awarded, the Nuchat­laht First Na­tion and hered­i­tary Chief Wal­ter Michael filed a no­tice of civil claim against B.C., Canada and Western For­est Prod­ucts Inc.

The Nuchat­laht are seek­ing a dec­la­ra­tion of abo­rig­i­nal ti­tle to the north­ern half of Nootka Is­land, an ap­prox­i­mate area of 250 square kilo­me­tres. The claimed area is a frac­tion (13 per cent) of what the Tsih­lqot’in were awarded in the land­mark 2014 case, ul­ti­mately up­held by a unan­i­mous de­ci­sion of eight judges on the Supreme Court of Canada. There is an old say­ing, sow the same seeds, reap the same re­wards.

More­over, on Jan. 23, the B.C. gov­ern­ment re­ported that Moody’s af­firmed their triple-A credit rat­ing and that it helps to keep pro­vin­cial debt af­ford­able for tax­pay­ers.

How­ever, since rec­on­cil­i­a­tion with First Na­tions is still un­fin­ished busi­ness, es­pe­cially with re­gards to the “land ques­tion,” B.C.’s credit rat­ing may be detri­men­tally im­pacted as its “con­tin­gent li­a­bil­i­ties” of un­ceded lands be­come a go­ing con­cern.

Li­a­bil­ity over the land ques­tion was likely rec­og­nized in a his­toric court case known as St. Cather­ine’s Milling. It was an 1888 de­ci­sion of Canada’s high­est court, the Ju­di­cial Com­mit­tee of the Privy Coun­cil, where it was stated, “The fact that the power of leg­is­lat­ing for In­di­ans, and for lands which are re­served to their use, has been en­trusted to the Par­lia­ment of the Do­min­ion is not in the least de­gree in­con­sis­tent with the right of the prov­inces to a ben­e­fi­cial in­ter­est in these lands, avail­able to them as a source of rev­enue when­ever the es­tate of the Crown is dis­en­cum­bered of the In­dian ti­tle.”

Since B.C. has failed to dis­en­cum­ber the ma­jor­ity of In­dian ti­tle in the prov­ince and to rec­on­cile with all of the First Na­tions through treaties or oth­er­wise, it’s only a mat­ter of time that more land is re­moved from pro­vin­cial ju­ris­dic­tion by way of abo­rig­i­nal ti­tle court dec­la­ra­tions and for that mat­ter, the land ques­tion may be­come a ma­jor go­ing con­cern for all Bri­tish Columbians.

It’s well past time abo­rig­i­nal rec­on­cil­i­a­tion in the prov­ince of B.C. was achieved.

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