Geoff Plant, OBC KC, is a litigator with Gall Legge Grant Zwack LLP and a former BC Liberal attorney general .
The drumbeat of complaints from opposition politicians and commentators about the B.C. government’s aboriginal policies reveals a profound misunderstanding of Canadian law that supposes political ideology is the cause of the current state of legal affairs.
In reality, when it comes to questions of indigenous claims and rights, it is the judges who have the last word, not politicians.
Viewed from this perspective, the B.C. government has been doing a good job of balancing constitutional rights and risks with the need for certainty and security for all of us. Instead of criticizing, we need to encourage this work. Our social and economic prosperity depends upon it.
A useful starting point to gain a clearer understanding would be the law of aboriginal title and the reality that the recognition of aboriginal title is not a political choice; it is a legal obligation.
Private ownership can be extinguished, Aboriginal title cannot
Aboriginal title is a judicially developed idea. Its modern incarnation is rooted in a statement made in the Calder et al. v. Attorney General of British Columbia Supreme Court of Canada decision from half a century ago: “[t]he fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…”.
The law of aboriginal title gives weight to prior indigenous presence and the proposition that it has continuing legal significance.
Twenty-four years later, another Supreme Court of Canada decision, Delgamuukw v. British Columbia answered the question about the content of aboriginal title when the Court held “aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title.”
It’s not just a right to do something on land, it’s a right to the land itself, including the right to decide how the land is to be used.
Private property also confers the right to exclusive use and occupation of land, but aboriginal title is different.
Read the full article at NortherBeat: Judges have last word on aboriginal law, not politicians, says former BC official