Canada’s Supreme Court rules on First Nations land

The Supreme Court of Canada has given a ruling that hands First Nations effective control over vast tracts of territory beyond the confines of their defined traditional lands.

The 80 page decision applies specifically to drawn-out litigation affecting about 660 square miles in British Columbia’s central interior occupied by six communities within the Tsilhqot’in Nation, but has the potential to reshape resource development across Canada.

The unanimous judgment represents a major victory for aboriginal groups, expanding their rights to claim possession of ancestral lands as a result of a semi-nomadic lifestyle and to control those lands permanently.

Chief Justice Beverley McLachlin wrote that the rights “conferred by aboriginal title means that governments and others seeking to use the land must obtain the consent of the aboriginal titleholders.”

The landmark ruling also provides a roadmap for all unresolved land claims across Canada by First Nations seeking to negotiate modern treaties, or to contest their land rights in court.

“Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it,” McLachlin wrote for all eight justices, while noting that aboriginal title is not absolute.

However, the ruling also made clear that, even if there is no consent, economic development should be able to proceed if governments can establish that projects have a “compelling and substantial” public interest.

Retroactive cancellations?

Other legal and regulatory observers said the ruling has implications not just for future projects but for those to have been approved or are under construction.

They noted that one paragraph in the judgment might force governments to retroactively cancel approval of a project if it was given the go-ahead before aboriginal title was established, while legislation enacted before title was established might also be “rendered inapplicable.”

The ruling could prove to be a major obstacle for industrial companies seeking to build major infrastructure projects such as pipelines.

Oil companies are already required to consult with native tribes during the pipeline construction process.

“The size of the boulder that Enbridge is rolling up the hill to get their pipeline built just got much bigger today, because the First Nations in that part of the country now have much, much bigger say in whether or not Enbridge can go ahead,” said Garth Walbridge, a lawyer for the Metis people.

Edited from various sources by Elizabeth Corner

Read the article online at: https://www.worldpipelines.com/business-news/04072014/canadas_supreme_court_rules_on_first_nations_land/