Wednesday, December 19, 2007

Xeni, I Shrunk the Province?

Just when I thought I was out, I get rumblings that some out there would be interested in the Pithlord's take on the Mr. Justice Vickers decision in Tsilhqot'in Nation v. British Columbia. (Warning: Large PDF file. May result in 2% of British Columbia's population owning 98% of its landmass)

I hate to disappoint the fans, but the Pithlord has not read it. This is partly because life is short, and partly because they changed the citation after I figured out that "Xeni'Gwetin" is pronounced "hun-EE-Gwuh-TEEN". But it's mostly because I think Beverley is going to decide this one and not some failed NDP leadership candidate-cum-trial judge, "non-appeallable advisory judgment" or no. And I think she's figured out what she is going to do.

Marshall #2 tells us that aboriginal title requires possession in more-or-less the same sense in which the English law required possession. Nomadic groups only possessed village and burial sites in this way. So aboriginal title will not, in the end, extend much beyond the current reserve boundaries.

Aboriginal hunting, fishing and other "usufructuary" rights, on the other hand, will probably extend to the whole province. The forests of BC will continue to be Crown land, but aboriginal groups will get a veto on any further development. That will mean they will have to get a royalty check, but it won't change much else. The Coase theorem will win in the end, as it always does.

Update: Commenter "sacmano" objects to my use of the term "nomadic". I withdraw it. "Nomadic" is a bad description for Coast Indians. However, the principal point is that there is a distinction between hunting/gathering territories and winter village sites, burial sites and the like. I believe McLachlin CJC thinks she can solve the BC land question with a narrow reading of *title* combined with a broad reading of site-specific rights. So title will be found to no more than 2% of the Province, but rights may be found over all of it (or all of the parts anyone would want to live in, anyway).

So even in the example of vary specific fisheries, those won't be found to be the basis for title.

This is just as well. The "lock, stock and barrel" view that aboriginal people own everything not covered by treaty (which means small parts of Vancouver Island, and the Northeast corner east of the Rockies and nothing else) would just precipitate a constitutional crisis. The overwhelming majority of the people of BC would never stand for it, and you'd have premiers quoting Andrew Jackson. It would also be a gross injustice for Ontarians to assauge their guilty conscience by expropriating everyone west of the Rockies. McLachlin knows this and she isn't going to let it happen.

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