Tim Dickson has published an article in September’s issue of The Advocate arguing that the Crown has a legal duty, arising from its assertion of sovereignty in 1846 over what is now British Columbia, to determine, recognize and respect Aboriginal title. While the Supreme Court’s jurisprudence contemplates this duty to determine – particularly in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 – the duty has been eclipsed by the duty to consult and has not received the attention it deserves.
Tim argues that, upon claiming sovereignty, the Crown was obliged to fulfill the duty in order to avoid illegally dealing with the land base as if it had full beneficial ownership. Having failed to do so then, the honour of the Crown requires the Crown to do so now, particularly given the prohibitive cost of title litigation and the limited progress at the treaty tables.
This article is Part I of a two-part series and addresses only the existence of the duty. Tim is currently writing Part II, in which he will set out some thoughts on how the duty to determine might actually be fulfilled.
You can read Part I here.