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A new era of title claims – Canadian Lawyer Magazine

Legal Report: Mining Law

A landmark ruling on aboriginal land rights will open the door to more title claims, possible slowdowns in mining and other development, higher costs, and a heightened push to negotiate deals. But the Supreme Court is building on existing practice rather than pushing aboriginal law in a new direction.
Lawyers specializing in both mining and aboriginal law expect a raft of new cases to test the limits of aboriginal title in the wake of the Supreme Court of Canada’s June 26 Tsilhqot’in Nation v. British Columbia ruling — the Tahltan First Nations in northern British Columbia jumped right in with a title claim that it launched hours after Tsilhqot’in came in. The lawyers also say any attempts from governments to argue the public benefit of a proposed development justifies infringing on aboriginal rights will prompt a new round of suits that will likely go all the way to the Supreme Court, probably delaying projects well beyond the time frame a company may be prepared to see.

In Tsilhqot’in, the Supreme Court issued its first declaration of aboriginal title, ruling the band holds title to land in the interior of British Columbia it has used over generations, and it can prevent forestry activities there. The decision confirms a new category in the land ownership lexicon, adding “title land” to the existing Crown land and private land.

The case has broad implications for those provinces where First Nations have no treaties dealing with land use, including parts of Quebec and the Maritimes as well as British Columbia, the resource-rich home to some 200 of Canada’s 600 First Nations groups. It gives governments the right to infringe on native title if it’s in the broader public interest, but also strongly reinforces the view it’s better to reach a deal with an aboriginal group than to launch into a costly legal process that may take more than a decade to be resolved.

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