On the surface, Lamer simply ordered that BC's longest-running legal dispute (Calder, Gitskan, Delgamuukw) go to trial again. However, Lamer then went on to define aboriginal title based largely on his own earlier rulings and the journal articles of a handful of radical utopian law professors. This definition will guide, if not determine, the outcome of the new trial.

Lamer's definition of aboriginal title is both unprecedented and personal. It overturns the previous definition of title contained in BC Supreme Court Justice Alan MacEachern's original Delgamuukw decision and a subsequent BC Court of Appeal decision. In judge-speak, Lamer upbraids the BC judges for failing to understand the law of Canada—or, in this case, his ambitions for our society.

Lamer re-defines both the substance of aboriginal title and the rules of evidence to determine its presence. Aboriginal title moves from the exercise of traditional activities on specific lands to a sui generis ownership that enjoys the critical test of fee simple ownership—exclusive use, e.g., one can keep others off the property. Also, if aboriginal title is found to apply to a piece of land, the aboriginal owners can seek compensation for past usage from the Crown. The price of compensation starts at market value and could include all earnings since 1846. Though aboriginal title does not apply to private property, the Crown must still compensate aboriginal owners.

In determining aboriginal title the courts will now follow Lamer's rules of evidence. He ordered that oral evidence, songs and stories, not only be admissible, but placed on a "equal footing" with Common Law tests of occupation and ownership. Justice MacEachern in his original decision had judged such evidence as "hearsay." In the future, judges may just split the difference between the scope of the oral and physical evidence. At any rate, the incentive now exists for aboriginal bands to expand exponentially the acreage of land claimed by each song. Lamer, knowing that aboriginal claims may overlap, also created a new category of ownership, an oxymoron called "shared exclusivity." This simply guarantees that aboriginal bands will fight among themselves.

How does Lamer's decision rate according to economic theory? First, most economists from Adam Smith onwards have shown that land will be better cared for and used more productively if someone owns it. It would make economic sense for aboriginal people to own all provincial Crown land if it were to be held in traditional fee simple ownership. But in his decision, Lamer practically gives control of 95 percent of the BC land mass to 4.9 percent of the population, then strips away the benefits to economic efficiency and wealth creation.

The first economic casualty of Lamer's decision is certainty. Neither the Crown nor aboriginal people now know what each other owns. It will take a generation of negotiations, and likely many court battles, to sort out who owns what.

The second casualty is the imposition of high transaction costs. For a company to build a mine or to log, it will have to consult any aboriginal band with title. In essence, this means getting permission and paying compensation. This is on top of provincial regulations and taxes. Resource companies, no doubt, will attempt to negotiate contracts with bands. But, as costs escalate and profit margins shrink, more projects will fail the cost-benefit test and be cancelled.

Companies may also have the burden of negotiating with every band member. Lamer states that land under aboriginal title will be held communally. Beside the "tragedy of the commons" effect with communal land, e.g., neglect and over-exploitation, communal ownership also makes all projects hostage to aboriginal politics as well as to the usual provincial government log-rolling.

The third casualty is that Lamer restricts how aboriginal people can exercise their title. For instance, they can't sell the land except to the Crown. They cannot use the land in ways that would reduce those values that made it subject to aboriginal title in the first place. No strip mining, nor parking lots, and possibly no logging may be allowed on certain parcels. Lamer confirmed that aboriginal title includes mineral and oil and gas rights, then makes development subject to myriad objections.

Will the federal or provincial government determine whether a band has violated the terms of its title? Or will the courts decide? Lamer offers no clear answer. He does say that provincial laws of general application apply, but only with the permission of the federal government under section 88 of the Indian Act. To add to this confusion, Supreme Court Justice LaForest in his supporting opinion that states—for the first time—that the Royal Proclamation of 1763 determines the nature of aboriginal occupancy in British Columbia. The door may be open for the federal government to regulate BC provincial Crown land subject to aboriginal title.

Both oddly and naively, Lamer asks aboriginal people and governments to still negotiate aboriginal title claims rather than litigate them. He has ruined any chance of that by creating the prospect of very generous court judgments. Why would any aboriginal bands bother with long, tedious negotiations based on the assumption that no more than 5 percent of Crown land would be transferred? If I were a Nisga'a negotiator, I'd tear up the unratified treaty and hire a lot of lawyers.

Some estimate that if the Nisga'a Treaty were applied to the whole province, the cost would reach $15 billion. That price now seems reasonable compared to compensating aboriginal people for 150 years of British and Canadian "borrowings." In the end, no one, including aboriginal people, will benefit from hobbling the economy with a torturous redistribution of land and tax dollars. A solution to this mess will require both realism and creativity.