Questions still remain for policy makers more than a year after a historic Supreme Court decision affecting Aboriginal title rights.
In June 2014, the Supreme Court confirmed Aboriginal title for the Tsilhqot’in Nation in British Columbia giving them claim for Aboriginal title despite no pre-existing treaty.
While the decision was thought by many as an immediate “game changer”, University of Saskatchewan law professor Dwight Newman says there are still several implications to work through.
“These implications have huge significance to Aboriginal communities and Canada as a whole,” says Newman.
Newman spoke at a justice conference in Saskatoon this week dedicated to Aboriginal Peoples and Law. He says some major issues coming from the decision are based around how it will affect private property.
“The Tsilhqot’in decision does not give clarity on whether there can be an Aboriginal title claim on private property,” says Newman. “There is lower court precedent against such a claim, but some commentators have suggested that the (Tsilhqot’in) judgement itself and the way it describes Aboriginal title has re-opened the question.”
Newman says several claims have already been forward pitting Aboriginal title against privately-owned lands, and the Tsilhqot’in decision does not implicitly resolve these claims.
“On the other hand, the question of the right to control how the land claimed can be used has been brought forward,” he says. “Can Aboriginal title holders of modern times use their land in modern ways, if that is their choice?”
Newman says these questions will not easily be answered and it may take years of massive legal work to sort out all of the implications from the Tsilhqot’in ruling.