Owen Lippert Fraser Tustitute columnist WRITTEN in Ottawa, Chief Justice Antonio Lamer’s majority deci- sion in Delgamuukw versus British Columbia will plunge B.C.’s resource economy and public finances into a generation of confusion and economic dysfunc- tion. Andi unless British Columbia's native leaders agree to limit their own exer: cise Of their new-found abo- riginal title, virtually nothing can change the course the province now finds itself embarked upon, Lamer calls for negotia- tions, but he has all but destroyed any chance of a negotiated as opposed te a lit- igated resolution of the role of aboriginal people in B.C.’s economy and society. On the surface, Lamer’s decision simpiy orders that B.C."s longest-running court case (Calder, Gitskan, Delgamuukw) go ié trial again. Thar said, Lamer then ere- ates a definition of aborigina! tithe based largely on his own earlier rulings and the ucopian legal writings of a handful of radicalized law professors. His judicial activism appears to have its impetus more in his perception of a social problem rather than legal precedence. No matter, Lamer’s dejini- tion of aboriginal titfe will now determine the outcome of all future litigation. Tt is imporcant to realize thar Lamer’s definition of aboriginal title is a new con- struction. The previous defin- ition of title contained in Justice MacEachern’s original Delgamuukw decision and subsequent B.C. Court of Appeal decision has been overturned. ‘+ 20 — Wednescay, December 24, 1997 - North Shore News livered by a thous None too subtly, Lamer pointed our thar BoC. judges failed to understand the flaw of Canada as brought to them by himself. Lamer’s definition changes both the substance of aborigi nal title and the evidentiary rules to determine its pres ence. Aboriginal tide moves from being an exercise of ta ditional activities on specitic sections of land towards 3 unique form of ownership which enjoys traits of fee sim- ple ownership such as exclu- sive use, eg. they can keep others off the property. If aboriginal title is proven to apply to a piece of land, the aboriginal owners are entitled to compensation for past usage by the Crown. The worth of the compen: sation owed starts at the mar- ket value of the land. Though private property remains beyond the scope of aboriginal title, all federal and provingial Crown lands in B.C. are now fair game. Moreover, Lamer has incredibly loosened the test of aboriginal title. Oral evidence as to the range of an aborigi- nal band’s land “holdings” now has equal weight to the previous Common Law tests of occupation and ownership. In practice, this will likely lead to judges simply splitting the difference between the scope of the oral claim and the physical evidence. thus creating the incentives for the EERE eee oral evidence to claim the largest possible Find mass Fora property neht te have the greatest vale. should be subject to the least inferterenee from: the govern ment, Lamer’s decision uives carte blanche to the federal government and the courts to interfere in-use Gf provineil crown Jand in the name of protecting aboriginal rights and tide. This appears co stem from his assumption that the Royal Proclamation of 1763 now applies in B.C. for the first ume ever -~ and in dircet contradiction of the B.C. Chier justice Alan MacEachern’s initial ruling. At the same time, Lamer hampers the aboriginal’s property rights under aborigi- nal tite, y . Mow % p sacauards, OFF me 180-200 Reg 24*-a+g NOW 24".109” Yhev cat sell the band except tothe Crown, They cannot use the land ny wavs that would reduce the values it held making at subject to aboriginal title in the first place. Strip mining, parking lots and possibly logeung may not be allowed on certain parcels. It is iromte that just as tamer has confirmed that aboriginal ove includes min eral and on and gas rights, he has set ia mation a test to prevent them trom exploiting those resources, untess — and here's a surprise — they sur- render the Jand to the Crown, The oddest part of Lamer’s decision is his fondly expressed hope chat the abo- rizinal people and the federal and B.C. provineial govern- ments will negotiate aborigi nal tith claims rather than fiti- Compare NOW weet © BAFFLE BOX CONSTRUCTION © FULL 10 YR, GUARANTEE 3° MW 78° compare S200" gate them. famer has literals destroyed the outing negou- Avon proves. and cast doubt over any heare ts From the aboryinal per spective, whe would vou bother with long, tedious Acyotations when vou have a much better chance of scour ing extensive ule through the COUTTS, The courts masr toilow Lamer’s definition of aborigi nai ude; they mast accept oral testimony. The federal and provincia governments don't. If b were a Nisga’a land claims negotiator, Pd tear up the pre posed treaty right now and hire the best lawyers in the country. British Columbia can expect te see literally thousands of claims brough: forward. Clogging the courts surely g° THIN wall netomeet che ccononiue asprranions of aboriginal peo ple some hase estimated that the Nisewa land claims uy BUNS Process were epphed to the whole province the cost would reach STS bil hon. After Lamer’s Delganiuukw decision, that price now seems very reason: able, Compensating aborigi- nal people for P30 years of Briush and Canadian “bor- rowings” has no limits. In the end neither aboriginal nor pon aboriginal people will benetit trom hobbling the economy from a massive and torturous redistribution of Jand and tay dollars. Owen Lippert ts Director of the Law and Markets Project atthe Fraser Institute. 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