In the Tsilhqot’in case, the Supreme Court found that the First Nation had successful established its claim to aboriginal title to the land in question. In other words, the First Nation owned the land when Europeans/Canadians first encountered them. It was not empty land free for the taking.
Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. In order to interfere with that ownership right, this requires the government to demonstrate both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. The honour of the Crown demands this on the part of our government.
This means the government must act in good faith in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty imposes an obligation of proportionality into the justification process: the government authorized incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group. According to the Supreme Court, this s. 35 Constitutional framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. In a day of reconciliation this is very important. I think this is a rational balancing of rights and responsibilities in such cases. Don’t you?
In the Tsilhqot’in case it was successfully argued that the issuance by the Province of B.C. of the logging licences affecting the land in 1983 and onwards, before title was declared was unconstitutional. The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests before issuing such a license. The Province did neither and therefore breached its duty owed to the Tsilhqot’in.
However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.
I think similar issues might arise in the Wet’suwet’en case. We’ll see if I’m fright.