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established that, in at least some cases, Aboriginal title will exist over very
large areas indeed.
A pipeline, then, differs from an activity such as logging because of the
near certainty that it will trespass upon Aboriginal title lands. It also differs
in its temporal effect: while logging will at some point end and trees will
grow back, a pipeline will be present forever, since pipeline companies generally
have “abandon in place” plans for their pipelines at the ends of their
useful lives. So if an Indigenous group is forced to accept a pipeline running
through its Aboriginal title lands, it is forced to accept it forever. And while
a pipeline may not be the only form of development that poses significant
risks of environmental contamination that threaten traditional Indigenous
subsistence, the risk can be very great indeed.
It is impossible to reconcile such intrusions with what the Supreme Court
of Canada said in Tsilhqot’in about the rights associated with Aboriginal title
73 Aboriginal title confers ownership rights similar to those associated
with fee simple, including: the right to decide how the land will be used;
the right of enjoyment and occupancy of the land; the right to possess the
land; the right to the economic benefits of the land; and the right to proactively
use and manage the land.
76 The right to control the land conferred by Aboriginal title means that
governments and others seeking to use the land must obtain the consent
of the Aboriginal title holders. If the Aboriginal group does not consent to
the use, the government’s only recourse is to establish that the proposed
incursion on the land is justified under s. 35 of the Constitution Act, 1982.
How is it that such clear declarations of the incidents of Aboriginal title
and the strict requirements that must be met in order to intrude upon Aboriginal
title lands can be disregarded? The answer is that the courts and governments
are, in effect, saying to Indigenous groups that unless they are
prepared to pay the tens of millions of dollars required to establish exactly
where their Aboriginal title exists, then no matter how certain it may be
that they do have Aboriginal title lands and that a pipeline will obviate the
constitutionally guaranteed incidents of their Aboriginal title, the Crown
will not be required to justify a proposed incursion.
This cannot be correct and cannot be consistent with the honour of the
WHAT TO DO?
At least in those cases where the Crown wishes to authorize construction of
a pipeline through an area where a rights-holding Indigenous collectivity