Fraser Institute – Dwight Newman, 2017
In 2014, the Supreme Court of Canada rendered a historic decision on Aboriginal title in the Tsilhqot’in Nation case. For the first time, a Canadian court made a declaration that an Indigenous community owned specifically defined lands in Aboriginal title. Amid all the commentary about the case, there has not been enough attention to date, though, to the legal uncertainties that remain after the decision—and that have even been perpetuated and expanded by the Court’s decision.
Legal uncertainties are often most harmful to the most vulnerable and marginalized within society. The legal uncertainties after the Tsilhqot’in Nation decision include uncertainties for Indigenous communities themselves on how they are per- mitted to use their own land. By not reaching more certainty, the decision may well have caused harm to fledgling Indigenous economies.
Legal uncertainty is of course also highly damaging to investment that would build economic prosperity for all, Indigenous and non-Indigenous British Columbians alike. The present paper tries to assess some of the key legal uncertainties left after the Tsilhqot’in Nation decision. Using a risk analysis, it considers the degree of uncer- tainty left on a number of points in the law and the impact of uncertainty on that point for investment in British Columbia.
The key uncertainties are these:
- Restraints imposed on Indigenous communities’ use of their own lands through cultural assumptions by the courts;
- the potential effects of the United Nations Declaration on the Rights of Indigenous Peoples on Canada’s approach to Aboriginal title;
- remedies applying if a project is commenced on land later subject to Aboriginal title;
- ownership of subsurface rights on Aboriginal title lands;
- requirements of the Aboriginal title test;
- land claims to land previously occupied;
- scope of justified limits on Aboriginal title;
- restrictions of Indigenous communities’ use of their own lands through court-imposed rules about future generations’ potential use of the land;
- impact of Aboriginal title on fee simple (privately owned) land;
- impact on sovereignty.