i learned a lot from both of the articles and others, but neither of them or any of the many others i've read. Attempts to answer my 'Big Question' [below]. Apparently this is a big question according to legal experts in the U.S. who have written to me in the last few days about my last Mud Report - 'The SCOC's Historic Tsilhqot'in Decision Granted Aboriginal Tiltle Plus Rights and Responsibilities'.
i have written to Jessica Clogg, Judith Sayers and others who worked on the Tsilhqot’in case but have received no replies as of now from any Canadian lawyer. i assured all of them that they could feel free to send their opinions, thoughts, comments to me without me ever revealing their or their firm's name and that, as i've assured many others on a wide variety of issues, that i'd never quote them without their express consent. i've assured them all on every issue i write about that i'm only interested in an educated answer to help me better explain whatever issue it is to my readers. If you have an informed opinion about my question, please help me out. i guarantee your anonymity too.
My Big Question is:
My question is about how this decision actually introduces the concept of Eminent Domain into Canadian law. In the ruling it states that the new Aboriginal Title holders are obliged to consent to an easement if/when the govt. proves in court the project is in the greater public good. The only recourse the Aboriginal Title holders have, if the claim of "compelling and substantial public purpose" is upheld in court, is to a fair 'market' compensation [again probably determined by a court].
This is exactly how the Tar Sands Resistance movement in Texas was overrun. The courts ruled and the cops enforced the Eminent Domain law that says the landowners had to give an easement for the KXL pipeline [regardless of their proof of eventual damage to their multi-generational ownership land] but were due fair 'market' compensation for their losses.
The Texans tried to argue the Trans Canada Corp was a foreign entity so the law didn't apply, that was thrown out. In the end the only voice that had 'standing' was the govt. declaration of the greater public good.
What i fear will really happen is appeal after appeal of the wording of bits and pieces of the new ruling by governments and corporations not real consultation. Followed, if they lose their court appeals, by declarations of exception because of the "compelling and substantial public purpose" line.
This argument that whatever development a First Nation doesn't consent to is one is "compelling and substantial public purpose" will be used at every hearing in every case by every government -local, provincial and federal. Sooner or later i fear the courts will agree with the Texas Supreme Court's logic [and many other U.S. precedents before that] about Eminent Domain and the latest jubilation will turn into another debacle for the environment. It will though, thankfully, stand as a human rights victory for Canada's FNs and will be a big step towards a more fair economic solution for FNs going forward which is a very good thing.