Most of B.C. is built on unceeded aboriginal land, which means that absent a treaty, the province’s legal foundation is on shaky ground. For this reason, British Columbians ought to be concerned about the slow pace of reconciliation of aboriginal rights and title.
Since the British North America Act established Canada as a country 150 years ago, it’s well past time aboriginal reconciliation in the province of B.C. was achieved.
As Justice Mary Southin of the B.C. Court of Appeal commented in reference to Skeetchestn Indian Band v. British Columbia: “Sooner or later, the question of whether those who hold certificates of indefeasible title, whether to ranch lands on Kamloops Lake or to a small lot with a house on it on Railway Avenue in the Village of Ashcroft or an office tower on Georgia Street in the City of Vancouver, are subject to claims of aboriginal right must be decided.”
According to the Supreme Court of Canada, in the Tsilhqot’in case, where aboriginal title is recognized, the province’s jurisdiction in curtailed because “aboriginal rights are a limit on both federal and provincial jurisdiction” and there must be a balancing of aboriginal rights versus the ability of the province to regulate, for example, fire or pest control.
In cases where aboriginal title is recognized, the province has no jurisdiction, and consent of First Nations is required for resource development as set out in the 2014 Tsilhqot’in Supreme Court of Canada decision. Approval of major projects, such as pipelines, require the consent of First Nations in any location where aboriginal title is established and absent consent, damages are to be paid to the proper rights-holders, unless there is a compelling and substantial public interest objective with a reconciliation goal that balances the interests of First Nations and the broader public.
With the help of lawyer Jack Woodward, who was an instrumental part of the legal team in the first and only case in Canada where aboriginal title was awarded, the Nuchatlaht First Nation and hereditary Chief Walter Michael filed a Notice of Civil Claim against B.C., Canada and Western Forest Products Inc.
The Nuchatlaht are seeking a declaration of aboriginal title to the northern half of Nootka Island, an approximate area of 250 square kilometres. The claimed area is a fraction (13 per cent) of what the Tsihlqot’in were awarded in the landmark 2014 case, ultimately upheld by a unanimous decision of eight judges on the Supreme Court of Canada. There is an old saying, sow the same seeds, reap the same rewards.
Moreover, on Jan. 23, the B.C. government reported that Moody’s affirmed their triple-A credit rating and that it helps to keep provincial debt affordable for taxpayers. However, since reconciliation with First Nations is still unfinished business, especially with regards to the “land question,” B.C.’s credit rating may be detrimentally impacted as its “contingent liabilities” of unceded lands become a going concern.
Liability over the land question was likely recognized in an historic court case known as St. Catherine’s Milling. It was an 1888 decision of Canada’s highest court, the Judicial Committee of the Privy Council, where it was stated, “The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.”
Since B.C. has failed to disencumber the majority of Indian title in the province and to reconcile with all of the First Nations through treaties or otherwise, it’s only a matter of time that more land is removed from provincial jurisdiction by way of aboriginal title court declarations and for that matter, the land question may become a major going concern for all British Columbians.
Troy Hunter is an associate lawyer at Remedios and Company, a Vancouver law firm, where he practises family and civil litigation, including aboriginal law. He is a member of the Ktunaxa First Nation from the Kootenays.