What Does Aboriginal Title Now Mean? Or Tsilhqot’in Nation: What’s Next? – Part 2 (24:42)
2:00 – 4:15 What Does Aboriginal Title Now Mean? Or Tsilhqot’in Nation: What’s Next? – Part 2
- Ms. Beth Symes, LSM, CM, Symes Street & Millard LLP, Toronto, ON
- Mr. Robert Janes, JFK Law Corporation, Victoria, BC
- Ms. Heather Leonoff, Director, Legal Services Branch, Constitutional Law Section, Department of Justice, Manitoba
- Professor Dwight Newman, College of Law, University of Saskatchewan
In 2014, the Supreme Court of Canada released two key decisions about Aboriginal title: Tsilhoqot’in Nation v. British Columbia 2014 SCC 44 and Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48. This panel will explore the implications of these decisions going forward from the perspective of First Nations, academics, the federal government and a provincial government.
In Tsilhoqot’in Nation (par. 75-76), the Court wrote: The rights and restrictions on Aboriginal title flow from the legal interest Aboriginal title confers, which in turn flows from the fact of Aboriginal occupancy at the time of European sovereignty which attached as a burden on the underlying title asserted by the Crown at sovereignty. Aboriginal title post-sovereignty reflects the fact of Aboriginal occupancy pre-sovereignty, with all the pre-sovereignty incidents of use and enjoyment that were part of the collective title enjoyed by the ancestors of the claimant group — most notably the right to control how the land is used. However, these uses are not confined to the uses and customs of pre-sovereignty times; like other landowners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice.
The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.