The recent B.C. agreement with the Haida Nation offers one path to dealing with the potential conflict that hangs over private land rights in non-treaty areas
Kent McNeil is an Emeritus Distinguished Research Professor at Osgoode Hall Law School in Toronto. He lives in British Columbia.The issue dates back to the 1850s, when colonial governments abandoned governor James Douglas’s policy of signing land-cession treaties with Indigenous nations on Vancouver Island. The colonial attitude, and that of the province after it entered Canada in 1871, was that the Indigenous nations had no rights to the lands they had occupied for thousands of years.
The court also ruled that the province has lacked the constitutional capacity to extinguish Aboriginal title ever since 1871. As a result, former justice Mary Southin of the BC Court of Appeal subsequently noted that Aboriginal title hovers as a “cloud” over private land rights in the non-treaty areas of the province. In reality, the B.C. government has never had the legal authority to extinguish Aboriginal title by creating private rights inconsistent with it.
One way forward is suggested in the Haida Title Agreement, entered into by the Haida Nation and the British Columbia government in April. In it, the province recognizes Haida Aboriginal title to Haida Gwaii, and the Haida Nation consents to honouring private property rights. This agreement actually provides private rights with more legal protection than they previously enjoyed, because it removes the cloud of uncertainty created by the Haida’s previously unresolved Aboriginal title claim.
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