Prof clarifies Aboriginal title

Aboriginal title points clarified by Victoria prof.

To the editor,

Just some clarifications regarding Tom Fletcher’s column, Life after the Tsilhqot’in decision (B.C. Views, July 2).

1. Federal and provincial authority may vary with the strength of an aboriginal title claim, as Fletcher contends, in the sense that the obligation to consult and accommodate is proportional to the strength of the claim. But this is not so once aboriginal title has been proved in court

Once such title is established it is no longer a matter of a “claim” and the aboriginal owners must consent to any development proposal respecting their land—unless the government supporting such a development meets the stringent constitutional test for limiting aboriginal rights and title in the absence of consent.

2. A finding of aboriginal title does not necessarily “lock in” communal ownership.

Just as treaty First Nations may agree to convert land to fee simple title, aboriginal title holders may agree to surrender land to the federal Crown on the condition that it be re-conveyed to them for the purpose of conversion to fee simple.

I suspect that obtaining such agreement is no easier in the former scenario that the latter, but it may be.

3. The Tsilhqot’in had a long history of keeping others out, and were the only First Nation that was hostile even to the fur trade. But they did not fight a war in the 1860s to defend their territory from a “wave of gold seekers.” They expelled everyone.

In 1864, after being threatened by the foreman of a crew building a wagon road through their territory —he had warned darkly of bringing back the small pox that had killed at least one third of their population two years earlier—they killed nearly all the crew and then killed or expelled all white settlers from their territory.

Hamar Foster, QC

professor of law,

University of Victoria

Just Posted

Port Alberni soapbox derby has new track

Lower Argyle Street will be open to racers under six

Vehicle catches fire near China Creek Marina

No injuries in blaze, according to witnesses

North Island College issues brief statement on bomb threat

Threat forced college to close all campuses for one day

Premier wades into fishery closure debate

John Horgan questions the federal government’s approach

France doubles up Croatia 4-2 to win World Cup

Played in Moscow Russia, latest Fifa World Cup marks the highest scoring final since 1966

REPLAY: B.C.’s best video this week

In case you missed it, here’s a look at replay-worthy highlights from across the province this week

Non-union construction industry fears exclusion in B.C.

Premier John Horgan imposes ‘project labour agreements’ for public works

Trump, Putin sit down a bit late for closely watched summit

Trump and Putin arrived Monday at Helsinki’s presidential palace for a long-awaited summit.

In TV interview, Trump claims queen called Brexit ‘complex’

Asked the queen’s view on Brexit, Trump said: “She said it’s a very complex problem.”

Exotic corpse flower begins to emit its putrid scent at Vancouver conservatory

A unique and exotic tropical plant, acclaimed for its size and abhorred for its smell, is blooming at a Vancouver conservatory.

CREA reports June home sales down 10.7% from year ago, but up from May

The Canadian Real Estate Association says home sales in June were down 10.7 per cent compared with a year ago.

Tens of thousands give heroes’ welcome to Croatia team

Euphoria gave way to a mixture of disappointment and pride for Croatia fans after their national team lost to France in its first ever World Cup final.

VIDEO: Firefighters put out brush fire in Nanaimo

Fire broke out in the area of a new development under construction in East Wellington

Former NHL goalie Ray Emery drowns in Lake Ontario

Police say the 35-year-old’s death appears to be a ‘case of misadventure’

Most Read