Reconciliation and Third-Party Interests: Tsilhqot'in Nation v. British Columbia

Kent McNeil is distinguished research professor at Osgoode Hall Law School in Toronto. The author would like to thank Ryan White for his valuable research assistance with this article, and Kathy Simo, Brian Slattery and Kerry Wilkins for their insightful comments on a draft.The manner in which conflicts between Aboriginal title to land and private third-party interests should be dealt with is a major issue in Canadian law and policy. The matter came up at trial in Tsilhqot'in Nation v. British Columbia, and again was left unresolved. However, Justice Vickers did acknowledge the vital importance of the issue and the need to reconcile these conflicting interests through honourable negotiations. While admitting that a courtroom is not the appropriate forum for achieving reconciliation, he provided detailed analysis of the applicable legal principles and insights into the public policy considerations that should guide the negotiations. This article examines these aspects of Justice Vickers' judgment and suggests more specific ways in which Aboriginal title and thirdparty interests might be reconciled through the process of negotiation. It proposes a context-based approach that seeks to redress the historical injustice of the wrongful taking of Aboriginal lands, without disregarding the current interests of innocent third parties. The monetary costs of reconciliation, it is argued, should be borne by the real wrongdoers, namely the provincial and Canadian governments