Ownership vs. The Greater Good; SCC ruling will affect new development projects

In its June 14 ruling on Tsilhqot’in First Nation People v. British Columbia (2014 SCC 44), the Supreme Court of Canada (SCC) allowed a declaration of “Aboriginal title” for the Tsilhqot’in Nation over a tract of land in the interior of British Columbia. This is the first decision in Canada granting Aboriginal title.

The SCC upheld a 2007 ruling by the British Columbia Supreme Court related to Aboriginal title that granted Aboriginal title to 2% of the Tsilhqot’in Nation traditional territory.

How might this ruling affect the development of major hydro projects on land held by First Nation Peoples?

The case revolved around the government of British Columbia and its desire ¬to use — without prior owner consent — land “for the greater good of the public.” In Tsilhqot’in, the First Nation People claimed the government was infringing on Tsilhqot’in ownership of the disputed territory.

The SCC agreed and although the court ruled in favor of the Tsilhqot’in Nation with regard to Aboriginal title, legal experts cite the ruling’s real outcome.

Cooperation a must

“This [ruling] means if major projects are to proceed, a much higher level of cooperation among First Nations, government and project proponents will be required,” said Warren G. Brazier. Brazier, an attorney, is founder and a regular contributor to MegaWatt, a British Columbia renewable energy law blog. He has been a member of the Law Society of British Columbia since 1998.

Brazier thinks further analysis of the ruling is needed. But, he also said, “…it will be prudent for governments, going forward, to obtain consent of each First Nation which has a potential Aboriginal title claim in respect of Crown lands which are proposed for development or in respect of a disposition of any interest is proposed in British Columbia.”

In writing the court’s opinion on the case, Chief Justice The Right Honorable Beverley McLachlin, PC, cited arguments in previous cases to allow for unconsented use of land historically owned by First Nation Peoples.

The court

The opinion says: “In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of Aboriginal title [83].”

However in the court’s summary on infringement in this case, McLachlin said, “Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out – that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group [88].”

Brazier opines, “Practically speaking, one of the consequences of Tsilhqot’in is that provincial and federal governments will need to dedicate greater resources to assist them in determining the strength of Aboriginal claims to title when carrying out consultation because a strong claim of Aboriginal title may attract more stringent duties on the party of the Crown.”

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Gregory B. Poindexter formerly was an associate editor for HydroWorld.com.

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