Sustainable development as a moral obligation tied to aboriginal title

By Supriya Tandan July 17, 201717 July 2017

Sustainable development as a moral obligation tied to aboriginal title


It would be fitting were the Prime Minister to name an Indigenous person to fill Chief Justice Beverley McLachlin's seat after she steps down in December. 

After all, it was under her tenure that the Supreme Court of Canada took great pains to strengthen indigenous rights, relying in large part on honour and reconciliation as the twin moral obligations that should guide Canada in its stewardship of certain lands. In her court’s later years, it appears to have added a third that could change how we view our collective responsibility in terms of owning land: sustainability.

The Crown draws its power to manage lands via the sovereignty proclamation. However this power is not absolute and in the words of the court, is “burdened” by land that belongs to aboriginal communities.

Chief Justice McLachlin articulated the idea of honour and its importance to aboriginal title in the 2004 Haida Nation decision. At issue was how provincial governments could manage lands claimed by aboriginal communities. In her decision, the Chief Justice drew upon the idea of honour to define the obligations of governments on lands that are under negotiation:

The answer, once again, lies in the honour of the Crown.  The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof.  It must respect these potential, but yet unproven, interests.  The Crown is not rendered impotent.  It may continue to manage the resource in question pending claims resolution.  But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim.  To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

It’s interesting to note that ten years later, in the Tsilhoq’tin decision, when the Supreme Court first declared aboriginal title in Canada, McLachlin also helped evolve the court’s thinking by training its eye on the importance on the sustainability of land.  In Tsilhqot’in, the suggestion is that aboriginal title is subject to an “inherent limit” – initially developed for reasons of cultural preservation –, which now ought to include a constitutional duty to safeguard the rights of future generations. Kent McNeil, a Professor Emeritus at the Osgoode Law School, writes:

[I]n Tsilhqot’in Nation the inherent limit underwent a significant modification: instead of preserving the land for the traditional uses relied upon to establish title, which is the way it was expressed in Delgamuukw, in Tsilhqot’in Nation McLachlin C.J.C.’s emphasis was on sustainability and respect for Aboriginal peoples’ authority to make their own decisions about the best uses of their land. “[L]ike other landowners, ”she said, “Aboriginal title holders of modern times can use their land in modern ways, if that is their choice ”, as long as the land is not “developed or misused in a way that would substantially deprive future generations of the benefit of the land”. Moreover, the inherent limit applies to governments as well that try to justify infringements of Aboriginal title.

In delivering the court’s decision in Tsilhqot’in, the Chief Justice wrote:

Aboriginal title, however, comes with an important restriction — it is collective title held not only for the present generation but for all succeeding generations.  This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.  Some changes — even permanent changes to the land may be possible.  Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.

This phrasing clearly evokes principles of sustainable development, as first conceived by the United Nations in the Brundtland Report: “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.  In a paper published following the ruling, David W.L. Wu contemplates the broader impact the decision could have:

If the inherent limit were to be applied more broadly, Canadian legal thinking on what it means to own land would dramatically change. Recognizing the malleability of property rights would weaken the assumption of exclusive use as the core right in ownership. The purpose of property rights would reorient from that of wealth generation to a wider reconciliation of how property impacts the complex relationships in both social and environmental worlds.                                 

The McLachlin Court made significant headway in signalling how aboriginal title could be used to uphold reconciliation and honour, but only recently began tying its limits to how land may benefit future generations. It will be up to the next court, one that will possibly include the first Indigenous Supreme Court justice, to weigh in further on how the principle will be applied.

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