July 10, 2014
VANCOUVER—The recent Supreme Court of Canada ruling, granting a group of six B.C. First Nations title to a large piece of land outside their reserves, will have national implications and will likely stunt economic development across Canada, finds a new study released today by the Fraser Institute, an independent, non-partisan Canadian public policy think-tank.The study, A Real Game Changer, breaks down the ruling, which granted more than 1,700 square kilometres of land in B.C.’s Interior to the Tsilhqot’in Nation.“This Court ruling all but guarantees increased uncertainty for natural resource projects in Canada and a potential increase in cost for economic development across the country. In provinces like British Columbia, future natural resource projects may be scuttled, and existing projects may be halted or shut down,” said Ravina Bains, study author and associate director of Aboriginal policy studies at the Fraser Institute.This is the first time in Canadian history that a declaration of Aboriginal title (the right to land or territory) has been recognized outside an Indian reserve.Unlike previous judgments, this ruling states that Aboriginal title can extend to all traditional territories and is not limited to specific villages. This is particularly important in B.C. where one-third of the country’s First Nations reserves reside and where outstanding claims involve more than 100 per cent of the province’s land.Now, on land where Aboriginal title has been established, project development requires the consent of the First Nation that holds title (except where the Crown demonstrates a compelling and substantial public purpose for the project). Where Aboriginal title hasn’t been recognized, the Crown—not individual project developers—must continue to consult and accommodate First Nations.Moreover, project developers may be forced to increase compensation to First Nations groups before continuing with development.“As a result of this ruling, provincial and federal governments must now clarify what they deem to be in the ‘broader public objective’ in anticipation of similar court cases granting Aboriginal title and potential economic projects being proposed across the country,” Bains said.According to the Court ruling, Aboriginal title includes the right to occupy, possess and manage land, the right to decide how land will be used, and the right to the economic benefits of the land.While the ruling may seem like a win for property rights for First Nations people, it restricts Aboriginal title to “communal” ownership. Subsequently, Aboriginal title lands cannot be sold privately. Research demonstrates that First Nations with some form of on-reserve property rights enjoy higher standards of living and better housing conditions.“Had the Court clarified Aboriginal title to represent individual property rights, it would have helped secure property rights for First Nations members who live on reserves—a right that all other Canadians enjoy,” Bains said.