Recent Supreme Court of Canada decisions around aboriginal rights and title are creating economic barriers for First Nation communities, and Canada as a whole, argues a new report from the Fraser Institute.
While the decisions have created a new range of property rights, the report says they are difficult to use in Canada’s market economy. It also claims the Court rulings create “opaque and unpredictable rules" for making land use decisions.
“Aboriginal peoples are thus in the paradoxical position of receiving new property rights that they will find difficult to use. This is an unfortunate situation both for them and for the wider Canadian economy,” says the report, written by political scientist and advisor Tom Flanagan.
At least one First Nations leader says the report misrepresents the values of Canada’s indigenous peoples, and misses the point about what they’re fighting for when it comes to protecting their traditional territories.
To drive home its point, the Fraser Institute cites the Supreme Court’s well publicized ruling last summer that six Tsilhqot’in bands have title over 1,700 square kilometres of land in central B.C.
In the ruling, Chief Justice Beverly McLachlin described title as the “right to use and control the land and enjoy its benefits.” The decisions also states First Nations must be consulted for use of those lands by outside parties, and governments can only infringe title rights if they have a compelling reason that provides a greater public benefit.
The Fraser Institute report says the title ruling is “a welcome attempt to restore Aboriginal property rights that should never have been disregarded so cavalierly.”
However, it said the Court “has attempted to right historical wrongs without giving much consideration to economic efficiency.”
For example, the Fraser Institute report claims there are fewer economic benefits because aboriginal title is restricted to “communal” ownership, which means land can’t be sold privately.
It also says duty to consult is ambiguous “and has likely put a chill on investment,” which hurts the economic prosperity of First Nation communities and the Canadian economy overall. The report recommends courts take more of a market approach in future decisions on aboriginal title.
Report short sighted?
Judith Sayers, a lawyer and strategic advisor on First Nations relations, says the report highlights some of the misconceptions about Canada’s indigenous peoples and their way of life.
“As always, there is an imposition of non-indigenous values to indigenous people,” says Sayers, a member of the Hupacasath First Nation in Port Alberni, B.C. “There’s a complete misunderstanding of how important collective rights are to First Nations people.”
Sayers also challenges the report’s arguments that duty to consult has a negative impact on resource development.
“First Nations aren’t opposed to development. They are opposed to development that will destroy their rights,” she says.
When First Nation communities do challenge development on their lands, it’s often because they believe they haven’t been properly consulted, or issues haven’t been resolved, Sayers says.
“What the courts are saying is that you have to do this right,” she says. “You might get your project through, you might not. So many of these companies think they can come along and do anything they want … It’s incumbent on governments to start doing things properly. If they did, we wouldn’t be having some of these issues.”