Uncertainty follows court ruling

A unanimous Supreme Court of Canada decision that gives powerful title rights to aboriginal people left many uncertainties in its wake

  • Nov. 23, 2014 6:00 a.m.

Cam Fortems – Kamloops This Week

A unanimous Supreme Court of Canada decision that gives powerful title rights to aboriginal people left many uncertainties in its wake, said an Ontario law professor.

Kent McNeil, a professor at Osgoode Hall law school, said that the Supreme Court of Canada’s Tsilhqot’in decision giving title to 1,700 square kilometres of land follows an ancient common-law principle that the first to use or exploit land can take title of it.

“They [Tsilhqot’in] were the first possessors of the land and that’s the standard that needs to be applied,” said McNeil, who spoke to law students and faculty at Thompson Rivers University’s Ike Barber Centre on Nov. 12.

In a unanimous decision in July, the country’s highest court rejected the B.C. government’s argument that aboriginal title should be restricted to settlement sites and other places frequently occupied by semi-nomadic aboriginal people before European contact.

McNeil said First Nations groups can rely on factors to prove occupation of land that include enforcing against trespass by other aboriginal groups or historical laws related to land use.

Experts have said the decision gives First Nations in B.C. a near-veto on development for what is unceded aboriginal land.

But, in reponse to questions, McNeil said many uncertainties remain.

Adams Lake Indian Band Chief Nelson Leon noted in a question-and-answer period the Crown’s underlying title interest is granted, while First Nations title must be proven.

“Onus of proof is still on aboriginal people,” McNeil said, noting if title is proven after development, for example, compensation would be required.

A number of Secwepemc bands are pursuing a related case to the Supreme Court of Canada, asserting a First Nations logging operation more than a decade ago that was not authorized by the province is lawful.

“I think the onus should be on the Crown to prove it’s Crown timber . . .” he said. “I hope the courts will acknowledge that. It’s going to take litigation.”

Other outstanding issues including overlapping aboriginal claims and status of fee simple land.

In advancing its case, the Tsilhqo’tin specifically left out private lands for strategic reasons.

But, McNeil said, questions remain about compensation for those now-private lands across B.C.