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has asserted Aboriginal title and that collectivity does not consent to the
pipeline, it will often be the case that the matter will be brought before a
judge by a party seeking a preliminary order. This could be initiated by the
Indigenous group, the Crown or the proponent of the pipeline. If, for the
reasons argued above, a judge in that situation is aware that constitutionally
protected Aboriginal land rights are at stake and is unwilling either to pretend
that that is not the case or to knowingly take a chance on those rights
being violated, what is to be done?
It would seem that in addition to whatever other determinations the judge
makes—regarding, for example, balance of convenience or irreparable
harm—a determination should also be made involving the possible violation
of Aboriginal land rights. This would presumably be a two-part determination,
considering: (1) whether on a balance of probabilities Aboriginal title
should be presumed on an interlocutory basis to exist somewhere along the
pipeline’s proposed route; and (2) if so, whether the Crown can justify the
proposed incursion on those Aboriginal title lands. The former determination
might be based on the affidavit evidence of some maximum number of
witnesses to be set by the court, perhaps one expert witness and one lay witness
per party, with a right of cross-examination guaranteed.
While the idea of making any determination regarding Aboriginal title on
a summary basis may seem unsatisfactory, consider that the default alternative
under the consultation and accommodation model is to ignore the
effects of a pending constitutional breach altogether as long as consultation
has occurred. Consider also that in the more than two decades that have
passed since Delgamuukw v. British Columbia,18 the Crown—both federal and
provincial—has chosen not to attempt to identify which lands constitute
those most likely to be subject to Aboriginal title—lands that might even be
conceded to be Aboriginal title lands. Perhaps having to address the topic in
summary proceedings might be an impetus to making such a determination,
and to actually moving toward a resolution of an issue that has
remained unresolved for a century and a half, and to achieving what Chief
Justice Lamer encouraged 23 years ago: “the reconciliation of the pre-existence
of aboriginal societies with the sovereignty of the Crown”.19
ENDNOTES
1. Haida Nation v British Columbia (Minister of
Forests), 2004 SCC 73 Haida; Taku River Tlingit
First Nation v British Columbia (Project Assessment
Director), 2004 SCC 74 Taku.
2. In re Southern Rhodesia, 1919 AC 211 at 232–33
(JCPC); Amodu Tijani v Secretary, Southern Nigeria,
1921 2 AC 399 at 407 (JCPC).
3. Constitution Act, 1982, s. 35, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11.
4. As to other possible forms of Aboriginal real property
rights, see Michael P Doherty, “Aboriginal
Dominion in Canada” (PhD thesis, University of
Aberdeen, 2017).
5. Prior to the recent 5–4 decision in Newfoundland
and Labrador (Attorney General) v Uashaunnuat
(Innu of Uashat and of Mani Utenam), 2020 SCC 4,
it would have been possible to say that Aboriginal
title is a real property right. The closest the majority