Whither Aboriginal Title?

By Bruce McIvor

We're finally going to find out if the hope and promise of the Supreme Court of Canada's 1996 Delgamuukw decision on Aboriginal title will be realized or thwarted.

By granting the Tsilhqot'in leave to appeal the BC Court of Appeal's 2012 decision in William v. British Columbia, the Supreme Court has set the table for a major showdown between First Nations and governments on the scope and reality of Aboriginal title.

What's at stake

The Court will hear arguments on issues ranging from the evidence required to prove Aboriginal title to the effect of a finding of Aboriginal title on a province's jurisdiction and purported ownership of Crown land.

But at the centre of it all will be a fundamental philosophical choice for the Court--can Aboriginal title encompass a First Nation's territorial claims or is it no more than a series of small use areas within a larger area over which a First Nation has Aboriginal rights?

The Court will be hard pressed to endorse the surprisingly narrow judgment of the BC Court of Appeal where Aboriginal title lands were described as "well defined, intensively-used areas" such as "salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps."

Hopefully, the Supreme Court will recognize that such a narrow application of the test for Aboriginal title outlined in Delgamuukw runs contrary to the common law and the principles of reconciliation. Instead of fostering respect and recognition, such a reduced vision of Aboriginal title is likely to engender distrust, antagonism and uncertainty.

For the promise of section 35 of the Constitution Act, 1982 to be realized governments across the country must acknowledge and respect the territorial claims of First Nations. The Supreme Court has an important role to play in this ongoing struggle for First Nation recognition.

All Canadians should hope that the Court confirms and solidifies the promise of the Delgamuukw decision by endorsing a vision of Aboriginal title that recognizes the historical and legal reality of First Nations with territorial land bases.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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