Quagmire in our native land – Financial Post

February 4, 2015

Parliament must act to mitigate the disastrous outcome of judge-made law

The decision last June of the Supreme Court that the Tsilhqot’in Nation has aboriginal title to 1,759 square kilometres of land in central British Columbia with about 200 residents has been well publicized. But the significance for Canadian business, particularly in areas where the land has not been ceded by treaty, has received less attention. Those areas include most of British Columbia, likely much of the Atlantic Provinces and parts of Quebec, and stretches of land elsewhere.

For any lands over which aboriginal title is found, or might credibly be sought, the Court’s reasoning will have far-reaching consequences. That reasoning flows from the prism through which it views aboriginal rights. The Court said in Calder (1973) that “Aboriginal rights survived European settlement and remain valid to the present day unless extinguished by treaty or otherwise,” but the concept underlies judicial decision-making stretching back to the Royal Proclamation of 1763. No previous decisions made aboriginal title concrete in a specific case, but the possibility was strongly foreshadowed in decisions like Delgamuukw and Haida Nation.

Read More: http://business.financialpost.com/2015/02/04/quagmire-in-our-native-land/