July 29, 2014
ABORIGINAL TITLE AND ITS IMPLICATIONS
The following artice is from the British Columbia Real Estate Association's monthly publication Legally Speaking. I find it an interesting chapter in the Aboriginal land story and thought you might like to read it too.
On June 26, 2014 the Supreme Court of Canada released a landmark decision concerning Aboriginal rights and title in the Tsilhqot’in Nation v. British Columbia1 case.
In a unanimous decision, the Supreme Court of Canada confirmed that the Tsilhqot’in Nation holds Aboriginal title to over 4000 square kilometers of land west of Williams Lake. This decision is significant because it is the first judicial finding of Aboriginal title in Canada.
In the Tsilhqot’in Nation case, the Supreme Court of Canada confirmed that in order to establish a claim to Aboriginal title, a First Nation must be able to prove “sufficient occupation” of the land in question at the time of European settlement. Of importance is the Court’s determination that “significant occupation” is not confined to specific settlement sites, as had been determined by the BC Court of Appeal, but extends to lands regularly used for hunting, fishing or otherwise exploiting resources and over which the First Nation exercised effective control at the time of the assertion of European sovereignty. The adoption of the broader “territorial” approach, as opposed to the narrower “site specific” approach, will probably result in larger title claims succeeding in the future.
Once Aboriginal title is established, the successful First Nation will have the right to decide how their land will be used, the right of enjoyment and occupation of their land, the right to the economic benefits arising from their land and the right to proactively use and manage their land. Such use will not be confined to pre-sovereignty uses and customs such as hunting and fishing only. Modern Aboriginal land holders will be able to use their land in modern ways. As Aboriginal title includes the right to reap the economic benefits of resources situated on Aboriginal title lands, successful claims will result in a diminution of resource revenues to the Province from those lands.
Of interest to many British Columbians is what effect, if any, this decision will have on private property situated on land that is subject to a First Nation claim. The simple answer is none. The Tsilhqot’in Nation did not include any privately owned land in their territorial claim, so how Aboriginal title can be reconciled with private property rights is a question for another day.
The Tsilhqot’in Nation decision does not change the basic principles of the Crown’s duty to consult with First Nations but it will compel the Crown to engage that duty more often as the geographical scope of Aboriginal title has been more broadly defined by the Court’s adoption of the “territorial” approach.
It is difficult to speculate about the implications of the Tsilhqot’in Nation decision. Initial reaction seems to range from “nothing has changed” to “the sky is falling.” While it clearly provides certainty to the Tsilhqot’in Nation, what will its effect be on the many other First Nation land claims in British Columbia? Will some First Nations abandon the treaty process and seek certainty through the Courts? How long will that process take?2 Will the Crown’s broader duty to consult resulting from the adoption of the “territorial” approach enhance or impair resource development on Crown land in British Columbia? The answers to those questions will be revealed over time. Hopefully First Nations, government and industry will seek ways to collaborate to shape the future of British Columbia. The Tsilhqot’in Nation decision repeated the oft-quoted words of Chief Justice Lamer in the Delgamuukw decision that Aboriginals and non-Aboriginals “are all here to stay.”
Bull Housser LLP
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 Docket 34986.
The Tsilhqot’in Nation trial commenced in November 2002 and took 339 hearing days over five years. After appeals, the total journey through the courts took almost 12 and half years.
For more detailed information about the Tsilhqot’in Nation case, prepared by Bull Housser & Tupper’s Aboriginal Law Group (referenced extensively in drafting this column), download the analysis at www.bht.com.
Back issues of Legally Speaking are available to REALTORS® on BCREA's REALTOR Link® homepage. Subscribers who are not REALTORS®, and who wish to see back issues, should contact BCREA by email at firstname.lastname@example.org, or by phone at 604.742.2784.
Legally Speaking is published eight times a year by email and quarterly in print by the British Columbia Real Estate Association. Real estate boards, real estate associations and REALTORS® may reprint this content, provided that credit is given to BCREA by including the following statement: "Copyright British Columbia Real Estate Association. Reprinted with permission." BCREA makes no guarantees as to the accuracy or completeness of this information.
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July 28, 2014
When Someone is Upset with You
It may be a co-worker who feels slighted because of something you said at a meeting, a driver you inadvertently cut off on the way to work or a neighbour who's upset because your tree has branched too far into his yard.
It's almost impossible to go through life -- or even a week -- without someone becoming upset with you. It happens.
So how do you deal with it?
There's an easy technique recommended by de-escalation experts called the balloon technique. It works like this:
Imagine the other person's anger is like a balloon filled with air. If you get angry back, all you're doing is adding more air to the balloon.
Instead, simply let the person vent until he has communicated his frustration completely. (If he asks questions, say you prefer to hear him out fully before answering.)
Letting the other person vent with little or no interruption will help to "deflate the balloon" thereby de-escalating the tension. Then you'll be in a better position to deal with the situation.
July 6, 2014
Be Sure to Plan for the "Pet Issue"
If you have pets, you probably adore them. They're part of the family! But
when you're preparing your home for sale, you need to think about how
you're going to deal with the "pet issue".
Some potential buyers who view your property may love pets as much as
you do. However, others may be turned off by the tell-tale signs of pet
ownership – such as kitty litter, dander, and smells.
So be sure to make a plan for how you’re going to deal with your pets.
It's a good idea to keep pets out of the house during viewings. Even if your
dog or cat is friendly, some buyers will be uncomfortable around them. So,
you'll need to decide where your pets will go when buyers view your
property. Consider a local kennel or "pet day camp".
"Can't I just take my dog out for a walk?" you might be asking. You could,;
however, you may not always be available to do that during a viewing. So
have alternate plans available.
You should also consider how you will deal with pet dander and everyday
pet odours. You're probably used to them. Unfortunately, some buyers will
be turned off or even be allergic. So, in addition to cleaning your home
before a viewing -- especially in those areas where pets spend time like a
favourite cushion or scratching post – consider using specialty air sprays
available on the market that will neutralize pet odours.
Finally, it's a good idea to advise buyers that they're viewing a home with
pets. That way, they'll be more forgiving if they catch a whiff of cat dander.
Need more tips on preparing your home for sale? Call today.
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