Briefly compare the nature of rights for parcels on a reserve under the Indian Act and the
rights recognized by the Supreme Court of Canada in Tsilhqot'in
Under the Indian Act, the nature of rights for parcels on a reserve is limited. The Act grants the federal government the power to designate and control land on reserves. The parcels are owned collectively by the band, and individuals residing on the reserve have a Certificate of Possession, which grants them the right to use and occupy the land but not to own it. These rights are subject to the control and regulations of the federal government.
In contrast, the rights recognized by the Supreme Court of Canada in Tsilhqot'in case provide Indigenous communities with more extensive rights over their traditional territories. The court recognized Aboriginal title as a sui generis right, entitling Indigenous communities to the exclusive use and occupation of the land, and the right to derive economic benefits from it. This includes the right to control land use and make decisions about resource development on their territories. Aboriginal title is a constitutional right that recognizes and affirms Indigenous self-determination and sovereignty, providing a higher level of protection and recognition than the rights granted under the Indian Act.
The nature of rights for parcels on a reserve under the Indian Act and the rights recognized by the Supreme Court of Canada in Tsilhqot'in differ in several significant ways:
1. Ownership: Under the Indian Act, land on reserves is owned by the Crown and held in trust for the benefit of First Nations. Individual members of a First Nation do not have full ownership rights to specific parcels of land on reserves. In contrast, the Tsilhqot'in decision recognized Aboriginal title, which is a form of collective ownership, over a specific area of land.
2. Use and Control: The Indian Act grants the federal government significant control over reserve lands, including the power to lease or grant rights to non-Indigenous individuals or organizations. This often limits the ability of First Nations to make decisions about land use and development within their reserves. In Tsilhqot'in, the Supreme Court recognized that Aboriginal title includes the right to use, control, and benefit from the land, subject to certain limits to protect the broader public interest.
3. Inherent Rights: The Indian Act does not explicitly recognize inherent Aboriginal rights, which are rights that derive from Indigenous peoples' pre-existing occupation and use of the land. In Tsilhqot'in, the Supreme Court recognized the existence of these inherent rights, including the right to occupy and use the land for various traditional purposes.
4. Consultation and Consent: While the Indian Act mandates consultation with First Nations on certain matters, it does not provide for full consent or a right of veto. In Tsilhqot'in, the Supreme Court held that governments must obtain the consent of Indigenous peoples when their rights are being significantly impacted, particularly concerning their Aboriginal title lands.
Overall, the nature of rights for parcels on reserves under the Indian Act is more limited and subject to government control, while the rights recognized by the Supreme Court of Canada in Tsilhqot'in affirm a broader range of Indigenous rights, including collective ownership and control over specific lands.