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Obstacles to issuing Crown tenures

If the whole province is found to be covered by aboriginal title, can the government grant tenures over Crown land? Ninety-four percent of British Columbia is Crown land, and there are existing tenures of all kinds over much of it. There are forest licenses, agricultural leases, grazing permits, mining claims, rights of way, and so on. How can such tenures be issued in the face of a finding of aboriginal title which amounts to exclusive use of the land?

The Court says there are certain ways in which the province can issue tenures over areas which are found to be subject to aboriginal title, provided it gets over these hurdles:

• It must show that in issuing a tenure there is a compelling and substantial legislative objective in doing so. While the Court acknowledges that the general economic development of the province may meet that test, it said that, nonetheless, the prior aboriginal interest would need to be preserved, perhaps by allowing natives to have rights of co-management over any tenures granted.
• The government can grant a tenure over lands covered by aboriginal title provided it "consults" with the aboriginal group. In some cases (it does not specify which ones) the Court says aboriginal consent will be necessary.
• Aboriginal title can be replaced by a Crown tenure if the Crown pays compensation for doing so—presumably equivalent to the economic rent. The implication is that compensation is payable for past infringements as well. What price the City of Vancouver and every other city, town, village, hamlet, and resource tenure in British Columbia?

Then, almost as an afterthought, the Court gave the final coup de grace to British Columbia in holding that lands covered by aboriginal title are "lands reserved for the Indians under s.91(24) of the Constitution and therefore under federal jurisdiction," meaning that the federal government, if it so chose, could legislate a full range of land use management laws for Indians over most of British Columbia.

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Last Modified: August 23, 2000.