From the Financial Post

Aboriginal land will be expropriated

Elizabeth Brubaker, Special to Financial Post | August 20, 2014

Chief Roger William, of the Xeni Gwet'in First Nation, checks his iPhone while holding a traditional drum during a news conference in Vancouver, B.C., after the Supreme Court of Canada ruled in favour of the Tsilhqot'in First Nation, granting it land title to 438,000-hectares of land on Thursday June 26, 2014.

Past Supreme Court decisions make it clear that Aboriginal land won't be off-limits to economic development

Most analyses of the Supreme Court's decision in the Tsilhqot'in case agree that the government can override Aboriginal title only in extraordinary circumstances. But court decisions regarding the expropriation of the property rights of non-Aboriginal Canadians suggest that Aboriginal interests can expect only feeble protection.

The Supreme Court devoted a dozen paragraphs to the question of when and how governments can justify infringement of Aboriginal title. Its premise that governments will override title only "on the basis of the broader public good" and its assertion that governments must show that their actions are "backed by a compelling and substantial objective" seem, on face value, to provide strong protections.

The court went further, confirming that the government's objective "must be considered from the Aboriginal perspective as well as from the perspective of the broader public." In particular, it must help reconcile "Aboriginal interests with the broader interests of society as a whole." The court built in other protections, as well, imposing on governments a "duty to consult and accommodate." And it required governments to show that a proposed incursion "is consistent with the Crown's fiduciary duty towards Aboriginal people."

Such language prompted the media, pundits, and representatives from Aboriginal communities and industry alike to celebrate - or bemoan - First Nations' new strength and control. The Globe and Mail's Jeffrey Simpson wrote the decision confers "a de jure veto" over unwanted developments, the conditions for overriding which will be "very, very hard to meet." Wrote two lawyers with Stikeman Elliott: "The importance of obtaining consent from an affected Aboriginal group has been raised to a lofty height."

As the court itself put it, 'legislative objectives that can justify the infringement of Aboriginal title are fairly broad'

This belief in the barriers to infringing Aboriginal rights is unfounded. The Supreme Court undermined its promise of more secure rights with a laundry list of activities that might justify an incursion on Aboriginal title. Copied from its 1997 decision in the Delgamuukw case, the list includes the development of agriculture, forestry, mining, and hydroelectric power, the building of infrastructure, and, to cover all bases, general economic development. The protection of the environment and endangered species would also justify incursion. As the court itself put it, "the range of legislative objectives that can justify the infringement of Aboriginal title is fairly broad."

Just how broad may be surmised by the experience of the thousands of non-Aboriginal Canadians whose land has been taken by governments in the name of the so-called public good. Although the Supreme Court distinguished between Aboriginal title and the fee simple ownership that most other Canadians enjoy, the parallels may be instructive. The same courts will be making the decisions, and they will be interpreting similar language.

To promote economic development, governments have expropriated non-Aboriginal land for an office tower housing Daimler-Chrysler, a Toyota assembly plant, a Loblaws warehouse and distribution centre, and a foreign-owned open pit gold mine. They have also expropriated land for a big box store, a multiplex cinema, a private housing development, and a parking lot. Governments routinely argue that favoured developments create jobs and tax revenues - giving them, in the words of one Ontario court, "a valid and proper public purpose."

Public purpose has been defined so broadly as to become meaningless. This was apparent in a case heard by the Supreme Court in 1991. The Quebec town of Val-Bélair had expropriated land for a "land reserve" - defined by one judge as "a bank of land the use of which is not yet known." The court was divided over whether an undetermined use could qualify as a public purpose. In a dissenting opinion, three justices argued, "If a land reserve is defined by its lack of purpose, it is presumptively impossible to conclude that its creation is for the betterment of the collectivity. It is not self-evident that expropriation for the sole purpose of creating a land reserve is in the public interest, which is what our law requires." The court's majority did not share these concerns, and approved the expropriation.

Although a public purpose presumption permeates legal decisions regarding expropriation, neither the laws nor the courts define the term. And how could they? The concept is amorphous and subjective - it is, in fact, largely rhetorical. What qualifies as a public purpose, and when is it compelling and substantial? Which public will be served by a particular development? How to balance competing public interests? Neither the Tsilhqot'in decision nor the jurisprudence concerning the expropriation of non-Aboriginal lands answers such questions.

Elizabeth Brubaker is executive director of Environment Probe and author ofExpropriation in Canada: Discretion Masquerading as Law.