Today the Supreme Court of Canada (SCC) released its unanimous decision in the Tsilhqot’in Nation v. British Columbia case (generally known as the Roger William case), upholding the First Nation's claim to aboriginal title and rights over a portion of its traditional territory. This is the first case in which the SCC has confirmed aboriginal title over specific areas of land. The SCC also clarified the test for aboriginal title and addressed the interaction between aboriginal rights and title, and governments' ability to determine and regulate the use of lands subject to asserted and proven aboriginal title. The court's decision will have significant and long-lasting implications for land and resource users, developers, financiers and others throughout Canada.

BACKGROUND

The Xeni Gwet’in First Nation is part of the Tsilhqot’in Nation, whose traditional territory is in the Cariboo Chilcotin region of British Columbia. On behalf of the Xeni Gwet’in and all members of the Tsilhqot’in Nation, former chief Roger William filed a claim seeking a declaration of aboriginal title to two tracts of land (the Claim Area). He also sought a declaration that the Xeni Gwet’in had aboriginal rights to hunt and trap in the Claim Area. As the claim was motivated by opposition to logging set to occur in the Claim Area, he also sought a declaration that the forestry permits authorizing the proposed logging infringed the Tsilhqot’in’s aboriginal rights and title.

After a lengthy trial, the B.C. Supreme Court dismissed the claim for a declaration of aboriginal title because the pleadings sought an “all or nothing” declaration of title and there was insufficient evidence to establish title over the entire Claim Area. However, the court issued a non-binding “opinion” that the Tsilhqot’in had demonstrated aboriginal title over approximately 40 per cent of the Claim Area. The court held that the necessary degree of occupation to establish aboriginal title could be established by showing that the semi-nomadic Tsilhqot’in moved throughout the Claim Area and occupied various sites for parts of each year. The court also held that the Tsilhqot’in have aboriginal rights to hunt and trap in the Claim Area, and that the proposed forestry activities unjustifiably infringed Tsilhqot’in aboriginal rights. For further information on the trial decision, see our November 2007 Blakes Bulletin: The Tsilhqot’in Nation Decision on Aboriginal Title and Rights.

The B.C. Court of Appeal overturned the trial decision and held that aboriginal title must be demonstrated on a site-specific basis. Specifically, the court held that Tsilhqot’in was required to prove that they intensively used a definite tract of land at the time of sovereignty and, with limited exceptions, had not done so. The Court of Appeal upheld the trial judge’s holding that Tsilhqot’in aboriginal rights were unjustifiably infringed by the proposed forestry activities. For further information on the appeal decision, see our July 2012 Blakes Bulletin: B.C. Court Requires Site-Specific Proof for Aboriginal Title.

SUPREME COURT OF CANADA DECISION

The SCC rejected the narrow approach to aboriginal title taken by the Court of Appeal and confirmed that aboriginal title can be established on a territorial basis. As a starting point, although the Crown had abandoned the position that the claim should be barred because of defects in the pleadings, the court confirmed that a functional approach should be taken to pleadings in aboriginal cases. So long as the pleadings provide the parties and the court with an outline of the material allegations and relief sought, minor defects should be overlooked in the absence of clear prejudice.

With respect to the test for aboriginal title to land, the court confirmed that the test from Delgamuukw v. British Columbia remains and is based on “occupation” before the assertion of European sovereignty. To ground aboriginal title, this occupation must possess three characteristics: it must be sufficient; it must be continuous(where present occupation is relied on); and it must be exclusive. The court held that sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether aboriginal title is established:

“[50] The claimant group bears the onus of establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. In asking whether Aboriginal title is established, the general requirements are: (1) ‘sufficient occupation’ of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation. In determining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.”

The court cautioned against losing the aboriginal perspective by forcing ancestral practices into the confines of common law concepts, thereby frustrating the goals of faithfully translating pre-sovereignty aboriginal interest into equivalent modern legal rights. The question of what constitutes sufficient occupation was the key question in this case. The court held that in determining whether occupation has been sufficient, parties must look to the aboriginal culture and practices, and compare them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. The court confirmed that occupation is not confined to specific sites of settlement but extends to tracts of land that were regularly used for exploiting resources over which the group exercised effective control at the time of assertion of European sovereignty. The notion of occupation must reflect the way of life of the aboriginal people, including those who were nomadic or semi-nomadic.

Applying this test to the facts of the case, the court affirmed the findings of the trial judge, holding that the question of whether the evidence in a particular case supports aboriginal title is a question of fact for the trial judge. The trial judge found that the parts of the land over which he found title were regularly used by the Tsilhqot’in, which supports the conclusion of sufficient occupation. The geographic proximity of the sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supported an inference of continuous occupation. Finally, based on the evidence that prior to the assertion of sovereignty, the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, the trial judge concluded that the Tsilhqot’in treated the land as exclusively theirs. The SCC found that there was no demonstrated error in these findings.

The court confirmed that aboriginal title gives the title-holding group the exclusive right to decide how the land is used and the right to benefit from those uses. The only limitation on this right is that those uses must be consistent with the common ownership of the interest and the enjoyment of the land by future generations. This means that governments and others seeking to use the land must obtain the consent of the aboriginal title holders. If the group does not consent, the government must establish that the proposed incursion is justified under section 35 of theConstitution Act, 1982.

To establish justification, the government must show: (1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the aboriginal group in question. This means that the government must act in a way that respects the fact that aboriginal title is a group interest that inheres in present and future generations. Additionally, the government’s fiduciary duty infuses an obligation of proportionality into the justification process. This means that the incursion must be necessary to achieve the government’s goal (rational connection); that the government goes no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the aboriginal interest (proportionality of impact). In this case, the court found that the Crown did not consult the Tsilhqot’in on uses of the lands to accommodate their interests and breached its duty owed to the Tsilhqot’in.

While it was not necessary for the disposition of the appeal, the court went on to discuss the province’s powers in respect of aboriginal title lands both prior to and after proof of title. Prior to aboriginal rights or title being established, the Crown is required to consult in good faith with any aboriginal groups asserting rights or title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such groups. The court reaffirmed the test from Haida Nation v. British Columbia (Minister of Forests), which requires a spectrum of consultation based on a preliminary assessment of the strength of the case supporting the existence of the right or title, and the seriousness of the potentially adverse effect upon the right or title claimed. If the Crown does not discharge its duty adequately, remedies such as injunctive relief, damages, or an order that consultation or accommodation be carried out may be granted. The court also confirmed that the Crown has a moral and legal duty to negotiate in good faith to resolve land claims and emphasized that the governing ethos is not one of competing interests but of reconciliation.

As noted above, after aboriginal title to land has been established, the Crown must seek the consent of the title-holding group to developments on the land. Absent consent, the court held that development of title land could still proceed in certain circumstances if the Crown has discharged its duty to consult and can justify the intrusion on title. Importantly, the court rejected the argument that the Province of British Columbia was constitutionally unable to impact aboriginal title lands. However, the court held that once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to discharge its fiduciary duty to the title-holding group. This may require it to cancel a project that was commenced without consent prior to aboriginal title being established if the continuation of the project would unjustifiably infringe the group’s aboriginal title. Additionally, if legislation was enacted before title was established, it may be rendered inapplicable going forward to the extent it unjustifiably infringes aboriginal title.

The court noted that governments and individuals proposing to use or exploit land, whether before or after a declaration of aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested aboriginal group.

IMPLICATIONS

The full implications of the court’s decision will not be felt for years. While the court has confirmed that aboriginal title can exist on a territorial basis, title still remains difficult, time-consuming and expensive to prove. While some further understanding of the province's power to regulate – or allow – activities on aboriginal title lands will likely emerge from the Tsilhqot’in’s establishment of title, how this will apply in other circumstances will not be known until other successful claims are made.

In the meantime, the short-term implications will be centered on how territorial claims of title affect the provincial and federal governments' duty to consult under Haida. It would appear that these issues will manifest themselves quickly.