CALGARY—Recent Supreme Court decisions on aboriginal rights and title are impeding, rather than helping, the economic prosperity of First Nation communities, according to a new study released today by the Fraser Institute, an independent, non-partisan Canadian policy think-tank.
“The positive aspect of the new jurisprudence is the Court’s recognition that aboriginal peoples did possess and continue to possess ownership of land. Unfortunately, these decisions have conveyed new property rights that First Nations will find difficult to use in Canada’s market economy,” said Tom Flanagan, Fraser Institute senior fellow and author of Clarity and confusion? The new jurisprudence of aboriginal title.
For example, the Tsilhqot’in decision—which granted title of more than 1,700 square kilometres of land in B.C.’s interior to the Tsilhqot’in Nation—is potentially of enormous economic benefit to First Nations. That benefit, however, is reduced because the aboriginal title is restricted to “communal” ownership, meaning that the lands cannot be sold privately. Research demonstrates that on-reserve property rights (ie: individual ownership) encourages economic growth and higher standards of living.
The 2014 Mikisew decision added to the economic uncertainty by extending the governmental duty to consult for lands where aboriginal title that had long ago been surrendered by treaty. This requirement introduced new layers of ambiguity and has likely put a chill on investment.
“Recent court decisions have created opaque and unpredictable rules for making land use decisions,” said Ravina Bains, associate director of aboriginal policy studies at the Fraser Institute.
“The result has been a delay of major resource projects, including the export of liquid natural gas, construction of oil pipelines and the Ring of Fire mining development project in Ontario. These delays not only stifle the prosperity of First Nation communities but are costly to the Canadian economy as a whole.”
What can be done to remedy the situation?
The study suggests that the courts take judicial notice of basic economic principles of property rights, transaction costs, and markets in future decisions on aboriginal title.
“In other areas of jurisprudence, the Court has not hesitated to import fundamental values such as federalism, democracy, and respect for minorities into their decisions. Nothing prevents the justices of the Supreme Court, or any Canadian court, of paying some attention to the economic implications of their judgments,” Flanagan said.