ABORIGINAL TITLE AND CONTROLLING LIBERALIZATION: USE IT LIKE THE CROWN.

Author:Graben, Sari
 
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INTRODUCTION

In this article, the authors describe how Canadian governments use both contractual and legislative authority over property to promote economic development and argue that similar powers should be allocated to Indigenous governments in respect of Aboriginal title lands. We first illustrate the ways that federal, provincial, and municipal governments control economic and social development through legislation--specifically, legislation pertaining to government-owned lands, legislation that impacts the development of lands owned by others, and legislation that permits expropriation. We then draw on differences between governmental ownership and Aboriginal title, as articulated in Tsilhqot'in Nation v British Columbia, (1) to argue that Indigenous empowerment with respect of title lands--which to date has been largely effected through contract--could be improved if Indigenous governments were able to exercise comparable powers. To this end, we draw on a doctrinal analysis of Crown ownership to identify the modalities by which Crown-owned land is governed and then extrapolate from these observations to craft a governmental approach to Aboriginal title.

We begin in Part I by illustrating in what way the governmental generation of public profits from lands is not enabled solely by virtue of a government's role as a private owner. Peter Hogg's taxonomy of land governance by governmental owners is used as a structure by which governmental ownership authority can be characterized. (2) In his formative work, Hogg highlights that, unlike ordinary owners, Crown governments also have the power to legislate in respect of their own property. Crown legislation may range from "administrative and directory" (3) statutes, which define the way in which agents of the Crown may exercise those types of powers that are vested in ordinary owners, to statutes that modify or negate the terms of contracts between the Crown and third parties in respect of its property. In addition, the Crown has the power to pass legislation affecting the use of property that it does not own, but which falls within its jurisdiction. In the extreme case, the Crown may even use legislation that expropriates property for the benefit of third parties. Finally, the Crown enjoys a qualified immunity from interference with its rights and powers by the Crown in right of other orders of government.

In order to analyze how Hogg's taxonomy applies to local governments, the authors also consider how Crown uses might be translated when the scale and scope of powers is limited to smaller geographic and social borders. (4) We draw on scholarship and local governance, which identifies authority possessed by different localities and its application to economic development. This scholarship illustrates how problems with municipal powerlessness can be addressed using economic structures. What can be gleaned from this literature is that the capacity to link differential modes of owning large infrastructure (for example, highways or airports) to differential economic outcomes provides insights into the conditions for municipal or small government empowerment. (5)

In Part II, the authors compare governmental controls outlined above to the kind of controls that have been developed in Tsilhqot'in and Aboriginal title jurisprudence more generally. However, what is interesting about the effect of the decision in Tsilhqot'in is that it limits empowerment over land to contract. Because the decision does not include legislative authority over title lands, Aboriginal governments must draw upon their executive control (as First Nation land trustees) over title land to set the contractual conditions under which lands may be used. While governments often use contracting to effect development, no other government in Canada is singularly confined to contracting as a method of developing lands and resources. Rather, other governments can effect economic and social development through legislative enactments that direct the use of government owned lands, control development, and permit expropriation. While the Crown's sovereign power over territory and its private power over property are legally distinguishable, this article illustrates that the empowering characteristics of property and sovereignty overlap in Crown decisionmaking over lands. This recognition is essential for questioning the policy expectations of Indigenous economic empowerment sitting just beneath the surface of the jurisprudence in Tsilhqot'in.

In response to current limitations, the authors forward an approach to defining title that balances the increased liberalization of Indigenous property with the concomitant ability of Indigenous governments to control its effects. This, in turn, requires a conception of Aboriginal title that recognizes the capacity of proprietary and governmental powers to be used for economic, rather than strictly financial or commercial, development. The authors build on the argument that what is sui generis about Aboriginal title is its governmental character, and analogize the characteristics of title to the types of private and public powers exercised by other Canadian governments. By drawing a clear distinction between financial gain on the part of individual or corporate entities, and the economic development required for governance, this approach attempts to ensure that the pragmatics of economic development are grounded in and responsive to the needs of the political community.

  1. GOVERNING THROUGH PROPERTY

    Hogg's discussion of public property provides an excellent map by which to track and measure differences between what he calls public property (that is, the assets of the provincial and the federal governments) and territorial sovereignty. As seen through this prism, the categories by which Canadian governments exercise power through property come into sharp relief and help identify what characteristics Aboriginal title should have in order to be well positioned to control liberalization.

    1. LEGISLATIVE AUTHORITY OVER PUBLIC PROPERTY

      Both federal and provincial orders of government are empowered to legislate in relation to property pursuant to the heads of powers allocated to them under the Constitution Act, 1867. (6) For example, Parliament has the exclusive power to make laws in relation to national parks or other public lands as a result of its authority over "Public Debt and Property", as set out in section 91. (7) The provincial legislatures exercise powers in respect of provincial public property pursuant to subsection 92(5) of the Constitution Act, 1867, which confers the power to make laws in relation to the management and sale of the public lands belonging to the province, as well as the general legislative power over "Property and Civil Rights" (section 92(13)). (8) This second head of power includes the right to legislate in respect of provincial property not included in section 92(5), such as personal property. This concept of property has been understood quite broadly; it encompasses every type of asset, including buildings and corporations, (9) and can be held directly by the Crown or its agents.

      In principle, the Crown as a legal person is likely empowered to deal with its property without enabling legislation. (10) In practice, however, the primary way in which the federal and provincial legislatures exercise power through property is by legislating in regards to that property, either by delegating authority to manage the property, or prescribing the means by which third parties can make use of the property." For example, the government's power to sell surplus Crown property to private individuals is regulated by statute. (12) Similarly, legislation provides the terms under which the Crown permits third parties to access and exploits resources that it owns, such as the harvesting of timber on Crown lands, (13) or charging licensing fees for use of federal lands. (14) In addition, the Crown's ownership of property allows it to legislate in respect of that property even in cases where the legislation would normally be outside the government's jurisdiction; for example, by requiring that timber harvested from Crown lands be processed in Canada. (15)

      The Crown's legislative powet means that agreements with third parties may be altered by subsequent legislation. For example, leases for the extraction of natural gas and petroleum in the province of Alberta (the content of which is prescribed by regulations to the Mines and Minerals Act (16)) are subject to a "compliance with laws" clause, which states that the lessee must comply with the terms of the enabling statute as it may be amended in the future. (17) This allows the government to change the terms under which the leases are interpreted and enforced; in particular, such changes may not be challenged unless it can be shown that a change was made in bad faith or "amounts to an expropriation." (18)

      The Crown also retains the power to resile from any policy or agreement enacted by statute. The federal Interpretation Act, for example, provides that "[e]very Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person." (19) Finally, even in cases where the Crown alienates land to third parties, the Crown retains jurisdiction over the land even in the absence of a proprietary interest. The exercise of this jurisdiction may justify measures that affect the proprietary rights of others; for example, federal conservation legislation may limit the right of others (including the Crown in right of the provinces) to harvest a fishery. (20)

      Economic development by municipal governments employs a similar use of legislative authority over land, although with more limitations. An important function of cities is to promote economic development by private actors...

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