al
interpretive canons related to Aboriginal law and to s. 35. Section 35 must be
given a generous, large, and liberal interpretation, and uncertainties,
ambiguities, or doubts are to be resolved in favour of Aboriginal peoples. In
my view, these general comments about s. 35 are applicable to assessing how
Aboriginal title may be impacted by fee simple interests.
b) Neither Aboriginal title nor fee
simple title is absolute
[2176]
Aboriginal title and
fee simple interests are not unqualified interests. Aboriginal title comes with
restrictions, and rights that are recognized and affirmed are not absolute:
Tsilhqotin
SCC at paras. 74, 119. Aboriginal title has inherent constraints: (1) it
is inalienable, except to the Crown; (2) it is held communally; and (3) it
cannot be encumbered, developed or used in ways that would prevent future
generations of the group from using and enjoying it:
Delgamuukw
SCC at
paras.113, 115, 117;
Tsilhqotin
SCC at paras. 67, 74, 94. Further, it
can be infringed where doing so is justified.
[2177]
In
Tsilhqotin
BCSC, Vickers J. noted that the existence of various private interests in the
claim area at issue may have some impact on the
application or exercise
of the underlying Aboriginal rights, including Aboriginal title: at para. 999.
[2178]
Of note, historically, Aboriginal
interests in land in British Columbia have not been well‑protected. John
Borrows describes this history in Aboriginal Title and Private Property
(citations omitted):
In
much of British Columbia Aboriginal title was given to third parties without
any transfer, sale or surrender. Indigenous land rights were unilaterally pre‑empted
by settlers throughout most of British Columbia history without any input from
Aboriginal peoples. This process continues today. The same statute that granted
the right of preemption to settlers denied the same to Aboriginal peoples. Now,
with each judicial recognition of Aboriginal title, Aboriginal land-holdings
might expand and be more adequately protected. As a result non-Aboriginal
property interests may from time-to-time diminish in favour of Aboriginal
peoples.
[2179]
Fee simple title is
the largest estate in land and the closest thing to absolute ownership in
common law. In
Kwikwetlem
, the Court of Appeal confirmed that a grant
of