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Comment: We must pay to reconcile aboriginal and private property
By Kent Walker
April 04 2008
In the most important aboriginal title case since Delgamuukw, Justice David Vickers recently provided timely criticism of what he termed B.C.’s and Canada’s “impoverished view” of aboriginal title. His strong words highlight the problems, and possible solutions, to the difficult issue of aboriginal land rights.The four-year trial involved a claim to aboriginal title and harvesting rights in the interior of B.C. Justice Vickers found in Tsilhqot’in Nation v. British Columbia,  B.C.J. No. 2465 that aboriginal harvesting rights exist over the entire claim area. Applying the Delgamuukw test of exclusive occupation of land when the Crown asserted sovereignty, he also found that aboriginal title had been proven to about 45 per cent of the area. He nonetheless declined to issue a declaration of title because the pleadings requested a declaration to the entire claim area, and he concluded the defendants would be prejudiced by a declaration to just portions. But to promote honourable negotiations, he expressed his opinion on issues of title that “did not need to be decided”.
Justice Vickers’ explanation for providing a lengthy obiter opinion on title is revealing. He devoted 18 pages of his judgment to reconciliation, admitting that, in the adversarial milieu of the courtroom, judges are “ill equipped to effect a reconciliation of competing interests.” Reconciliation, he observed, must be achieved in “a treaty negotiation process.” What, then, is the role of the courts? Justice Vickers apparently thought that his factual findings and non-binding legal conclusions would induce the parties to bargain in good faith and reach reasonable accommodations.
He clearly regarded the positions of B.C. and Canada on aboriginal title as the major obstacle to honourable negotiations. He said their “postage stamp” approach could not “be allowed to pervade and inhibit genuine negotiations.” He also blamed “governments at all levels, for successive generations,” for having “failed in the discharge of their constitutional obligations.” These failures included B.C.’s wrongful denial of aboriginal land rights, and Canada’s refusal to accept its constitutional responsibilities and negotiate treaties in B.C.
The constitutional problem stemmed from the province’s assumption from the time it joined Canada in 1871 to the 1990s that no aboriginal title existed in B.C., and so all unpatented lands that were not federal belonged to the province. Not so, said Justice Vickers, as Delgamuukw decided that aboriginal title is proprietary and includes exclusive rights of occupation and use. Moreover, aboriginal title lands are under exclusive federal jurisdiction as “Lands reserved for the Indians” (s.91(24) of the Constitution Act, 1867). So, besides lacking a present beneficial interest, the province has not had jurisdiction over these lands since 1871.
Relying again on Delgamuukw and the division-of-powers, Justice Vickers concluded that B.C. could not extinguish aboriginal title by granting interests to third parties. Although he avoided any conclusions on the effect of these grants, it follows from his analysis that grants of interests inconsistent with aboriginal title would be invalid. This means that these grantees would have entered as trespassers. Also, the grantees would not be able to rely on provincial statutes of limitation because, as he observed, those statutes would not apply for the same division-of-powers reasons.
No wonder Justice Vickers has thrown this controversy back to the governments that created it! But how might aboriginal title and inconsistent private property interests be reconciled in treaty negotiations? I believe this would involve seeking a middle road toward reconciliation and avoiding one-sided approaches that would, as Justice Vickers pointed out, “run the risk of rubbing salt into open wounds.”
The first issue is that provincial fee simple grants of aboriginal title land could not have extinguished aboriginal title and should have been void. But what if the grantees entered believing they had good title, made substantial improvements, and have remained in peaceful possession ever since? Arguably, dispossessing them today would replace one injustice with another. The aboriginal titleholders are nonetheless entitled to a remedy for the wrongful taking of their lands. Since it would be unjust in the circumstances to return the lands themselves, the real wrongdoers – Canada and B.C. – should provide replacement lands or monetary payments as compensation.
In other instances, the province has wrongfully granted interests less than fee simple estates, such as mining and lumbering interests, in aboriginal title lands. Where resource extraction has terminated and these interests have expired, it would be appropriate for the wrongdoers – again, Canada and B.C. – to compensate the aboriginal titleholders for the value of the resources (which, according to Delgamuukw, belonged to the aboriginal titleholders), and for the damage done to their lands.
In situations where provincially authorized mining, forestry, etc. are continuing on aboriginal title land, Canada and B.C. should pay compensation for the value of the resources taken and the damage already done. But these activities should not continue without the consent of the aboriginal titleholders, who, as determined in Delgamuukw, have the right to manage their lands and make decisions about the uses to which they are put. As these management rights are on-going, future resource extraction should be subject to aboriginal control. Moreover, a share of the benefits should go to the aboriginal titleholders who own the resources. The federal and provincial governments have no beneficial interest in these resources, and so should not share in the revenues they produce.
Some people may balk at the cost of compensating aboriginal titleholders for past wrongs. But compensation is generally paid to property owners when their lands and resources are taken by governments, even when this is lawfully done for public purposes under statutory authority. It would be highly discriminatory for aboriginal titleholders to be treated less favourably, especially when their lands were taken in violation of the Canadian Constitution. Given that these wrongs were committed by governments acting on behalf of Canadians and B.C. residents, we should all bear the costs.
In Tsilhqot’in Nation, Justice Vickers said the “central question is whether Canadians can meet the challenges of decolonization.” I think paying compensation for the wrongful taking of aboriginal lands and resources would be a significant step in this direction.
Kent McNeil is a professor at Osgoode Hall Law School in Toronto.
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