23 Crown Infringement of Aboriginal Title

Sometimes the Crown views it as a necessity to infringe upon Aboriginal rights without receiving the consent of the affected Nation. For example, the Crown may have an objective to conserve fish in an area in a season with a poor salmon yield. They may also wish to approve an interprovincial pipeline and override a single Nation’s opposition. Whatever the case, the Crown is able to infringe upon these rights if they can demonstrate a few things. These criteria were developed by the Supreme Court of Canada in R. v. Sparrow in 1990 and further elaborated in Tsilhqot’in Nation v. British Columbia.^[1]

If Aboriginal title is confirmed to exist on the land, or if it is likely to exist, then:

1. The government must consult with the affected Indigenous group and accommodate their concerns where feasible.
2. The government’s actions must be backed by a “compelling and substantial public purpose.”
3. The government’s actions must be “consistent with the Crown’s fiduciary obligation to the group.”^[2]

We’ve discussed the Duty to Consult from criteria 1 throughout this chapter: essentially, the Crown is required to accommodate concerns. For example, if they wish to build a pipeline, they may have to reroute it through less sensitive environmental areas.

Criteria 2 requires a “compelling and substantial public purpose.” The Supreme Court of Canada described in Delgamuukw what this looks like:

“… [T]he development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis” (Delgamuukw v. British Columbia, 1997, para. 165).

The purposes for which government can infringe Aboriginal title are broad.^[3]

Criteria 3 requires the Crown to act in a way that respects Aboriginal title being a gift to future generations. To do this, the infringement of Aboriginal title must be:

1. connected to the Crown’s goal
2. only as impactful as necessary to achieve that goal
3. such that the benefits of the Crown’s goal are not outweighed by the negative impacts on the Aboriginal group^[4]

Rights are only as good as their enforcement. At the moment, it’s unclear what remedies are available to Indigenous groups that have their rights violated without proper Crown justification. No financial compensation has yet been awarded in court (Curpen, Braul, Mellett, Mathewson, & Monaco, 2014), nor would financial compensation be appropriate in every case. We anticipate this issue to be resolved eventually, but at the time of writing, no such case law has been developed.

In summary, Aboriginal title is not an absolute grant of governance over territorial lands to an Indigenous group. Rather, Aboriginal title is still subject to the Crown doing what it views as being in the best interests of Canada. As we will discuss in the next section, this idea causes some critics to view the Duty to Consult and Aboriginal title as ideas that have ceremonial meaning, but lack teeth to meaningfully stop unwanted development on Indigenous territory.