Aboriginal Rights: Unresolved Issues Create Problems for Business by Keith E. Clark


Unresolved issues concerning Aboriginal rights and title are creating problems for the business community across Canada. Businesses operate best in environments where legal rights and rules are known and respected.

In British Columbia, where most of the land base is not subject to a treaty, it was hoped that the Tsilhqot’in v. British Columbia case would bring more certainty to the issue of where, and under what circumstances, Aboriginal title might be found.

Unfortunately this case, decided late in 2007 by Mr. Justice Vickers of the Supreme Court of British Columbia, may have only added to the confusion.

Although the Tsilhqot’in case was a massive undertaking, it was not the longest Aboriginal title case in B.C. At 339 days of evidence and argument, it fell short of the 374 days taken up by the trial in Delgamuukw. But the Tsilhqot’in case was almost certainly the most expensive Aboriginal case to be heard in Canada. It is estimated that the cost of the litigation that was funded by the Canadian taxpayers was $30 million.

However, where the Tsilhqot’in case really stands out is in the amount of obiter dicta in the reasons for judgment. Obiter dicta is defined as “an incidental and collateral opinion that is uttered by a judge, but is not binding.” The vast majority of the 473 pages of the judgment in the Tsilhqot’in case are expressly intended to set out only the opinion of the trial judge, but to have no binding or legal effect.

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