Aboriginal land will be expropriated – Financial Post

Past Supreme Court decisions make it clear that Aboriginal land won’t be off-limits to economic development

Most analyses of the Supreme Court’s decision in the Tsilhqot’in case agree that the government can override Aboriginal title only in extraordinary circumstances. But court decisions regarding the expropriation of the property rights of non-Aboriginal Canadians suggest that Aboriginal interests can expect only feeble protection.

The Supreme Court devoted a dozen paragraphs to the question of when and how governments can justify infringement of Aboriginal title. Its premise that governments will override title only “on the basis of the broader public good” and its assertion that governments must show that their actions are “backed by a compelling and substantial objective” seem, on face value, to provide strong protections.

The court went further, confirming that the government’s objective “must be considered from the Aboriginal perspective as well as from the perspective of the broader public.” In particular, it must help reconcile “Aboriginal interests with the broader interests of society as a whole.” The court built in other protections, as well, imposing on governments a “duty to consult and accommodate.” And it required governments to show that a proposed incursion “is consistent with the Crown’s fiduciary duty towards Aboriginal people.”

Read more: http://business.financialpost.com/2014/08/20/aboriginal-land-will-be-expropriated/