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 court house (Alberni Valley News)
Coroners’ inquest into 2016 death of Port Alberni teen rescheduled for June 21

18-year-old Jocelyn George died of heart failure after spending time in jail cell

CELEBRATING IN STYLE
Members of the 2021 Alberni District Secondary School graduating class pose for a photo at McLean Mill National Historic Site on June 12. Graduates held their prom on Saturday, although things looked a little different due to COVID-19. See more on page A10. (ELENA RARDON / ALBERNI VALLEY NEWS)
Port Alberni 2021 grads celebrate prom with car cruise

Special event held at McLean Mill National Historic Site

The Port Alberni Bombers are one of the newest teams in the VIJHL. (SUBMITTED PHOTO)
Port Alberni Bombers to host first ID camp for roster spots

Roster spots for the Junior B team will be filled at the conclusion of the camp

Douglas Holmes, current Alberni-Clayoquot Regional District chief administrative officer, is set to take on that position at the Regional District of Nanaimo come late August. (Submitted photo)
Regional District of Nanaimo’s next CAO keen to work on building partnerships

Douglas Holmes to take over top administrator role with RDN this summer

People watch a car burn during a riot following game 7 of the NHL Stanley Cup final in downtown Vancouver, B.C., in this June 15, 2011 photo. THE CANADIAN PRESS/Geoff Howe
10 years ago: Where were you during the 2011 Vancouver Stanley Cup Riots?

Smashed-in storefronts, looting, garbage can fires and overturned cars some of the damage remembered today

CVSAR search the Puntledge River following a report of an abandoned kayak. Photo, CVSAR Facebook page
Comox Valley Search and Rescue spends four hours searching for no one

Overturned kayak a reminder for public to contact officials if they have to abandon a watercraft

A worker, at left, tends to a customer at a cosmetics shop amid the COVID-19 pandemic Thursday, May 20, 2021, in Los Angeles. (AP Photo/Marcio Jose Sanchez)
Half of cosmetics sold in Canada, U.S. contain toxic chemicals: study

Researchers tested more than 230 commonly used cosmetics and found that 56% of foundations and eye products, 48% of lip products and 47% of mascaras contained high levels of fluorine

White Rock’s Marine Drive has been converted to one-way traffic to allow more patio space for waterfront restaurants. (Peace Arch News)
Province promotes permanent pub patios in B.C. post-pandemic plan

More than 2,000 temporary expansions from COVID-19 rules

Nanaimo Aboriginal Centre has embarked on a fundraising campaign, seeking to raise $1 million for establishment of an independent urban Indigenous school. Pictured here, Tsawalk Learning Centre students at an Orange Shirt Day event in September. (Submitted photo)
Nanaimo Aboriginal Centre looks to raise $1 million for urban Indigenous school

Centre says independent school would be first of its kind in B.C.

Lake City Secondary School Williams Lake campus students Ethan Reid, from left, Brenden Higgins, Ty Oviatt, Kaleb Alphonse, Nathan Kendrick and Landon Brink with RCMP officers Const. Nicoll and Const. Stancec. (Photo submitted)
RCMP thank 6 teens for helping prevent forest fire in Williams Lake

The students came across fire in a wooded area and used the water they had to try and extinguish the flames

There is an emergency shelter near the Golden Ears peaks. (Facebook/Special to The News)
Hiker fogged in on Golden Ears, spends 2 nights

Talon Helicopters, Ridge Meadows Search and Rescue bring him home Monday

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Annamie Paul, leader of the Green Party of Canada, speaks at a news conference on Parliament Hill in Ottawa, on June 10, 2021. THE CANADIAN PRESS/Justin Tang
Green Leader Annamie Paul facing no-confidence motion from party brass

move follows months of internal strife and the defection of MP Jenica Atwin to the Liberals

Most Read