The Supreme Court of Canada recently released its unanimous decision in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 concluding that the Tsilhqot’in Nation holds Aboriginal title to a defined area of land in British Columbia. This decision has made waves beyond the borders of British Columbia, and ripples will likely be felt in Atlantic Canada for some time to come. The existence and extent of Aboriginal title are live issues in this region.
Chief Justice McLachlin for the Court packed multiple topics and detailed analysis into her decision. This post does not aim to be a comprehensive summary of her reasoning, but instead attempts to highlight the main points from an Atlantic Canadian perspective.
Establishing Aboriginal title requires evidence to demonstrate sufficiency, continuity, and exclusiveness of occupation, and this evidence must be considered from both Aboriginal and common law perspectives. The following paragraph from Tsilhqot’in Nation nicely summarizes the test:
 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. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.
The result of confirmed Aboriginal title is significant: Control over the land.
As Chief Justice McLachlin put it (at paragraph 70), “In simple terms, the title holders have the right to the benefits associated with the land – to use it, enjoy it and profit from its economic development.” She stated further:
 Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.
The Court in R v Marshall; R v Bernard, 2005 SCC 43,  2 SCR 220 at paragraph 77 called Aboriginal title the “highest” Aboriginal right, and Tsilhqot’in Nation certainly reiterates that.
Aboriginal groups across Canada will surely perceive these ownership rights as worth negotiating (and maybe litigating) for. But how that negotiation—and potential litigation—will play out may differ from region to region, given the fact-specific evidence required to prove Aboriginal title.
It must be remembered that many of the Supreme Court’s seminal decisions on Aboriginal law have come from British Columbia, includingCalder v Attorney General of British Columbia,  SCR 313; Guerin v The Queen,  2 SCR 335; R v Sparrow,  1 SCR 1075; Delgamuukw v British Columbia,  3 SCR 1010; Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73,  3 SCR 511; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43,  2 SCR 650; and now Tsilhqot’in Nation.
The Court has used the first contact between Aboriginals and Europeans as a touchstone for the legal tests it has developed in this jurisprudence, including the test for Aboriginal title as set out above. This West Coast-centric case law can be difficult to transpose to the East Coast, where contact between Aboriginals and Europeans happened earlier, and in a different context, with different results.
The Supreme Court made brief mention of regional variations in Tsilhqot’in Nation:
 Throughout most of Canada, the Crown entered into treaties whereby the indigenous peoples gave up their claim to land in exchange for reservations and other promises, but, with minor exceptions, this did not happen in British Columbia. The Tsilhqot’in Nation is one of hundreds of indigenous groups in British Columbia with unresolved land claims.
These regional variations matter when it comes to applying the test for Aboriginal title.
Tsilhqot’in Nation is about the test at common law where there is no applicable treaty or agreement. The presence, and extent, of treaties and agreements in Atlantic Canada may therefore affect the analysis, depending on the location of the land in question. Such documents range from the historical “Peace and Friendship” treaties in the Maritimes, as mentioned in Marshall; Bernard at paragraph 7, to the more modern Newfoundland and Labrador Inuit Land Claims Agreement (although it is not expected that anything in Tsilhqot’in Nation could alter the terms of finalized agreements like this).
Recall that in Marshall; Bernard, Chief Justice McLachlin for a majority of the Court considered multiple historical sources to find that the Mi’kmaq had not proved they had Aboriginal title to the land now comprising Nova Scotia and New Brunswick, whether at common law, under the Royal Proclamation of 1763, or pursuant to Belcher’s Proclamation of 1762. These historical documents remain ripe for reinterpretation, despite the result in Marshall; Bernard. There was even an interesting side-note in Tsilhqot’in Nation about the Royal Proclamation, where Chief Justice McLachlin suggested that the “doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation…” (paragraph 69). Aboriginal groups in Atlantic Canada with unresolved title claims may latch onto this remark to bolster their positions.
It is also possible that further land claims agreements could be attempted or even concluded in Atlantic Canada over the coming years that would form part of any Aboriginal title case – or avoid the resort to litigation in the first place, as the Supreme Court envisions. There are currently negotiations and agreements in various stages across the region; for example, there is a detailed Labrador Innu Agreement-in-Principle on land claims and self-government in Newfoundland and Labrador.
These negotiations, agreements, and treaties will add an interesting layer, and may play a determinative role, if and when an Aboriginal group in Atlantic Canada moves to litigate a claim to Aboriginal title based on Tsilhqot’in Nation. (This topic is also discussed in more detail in Stewart McKelvey’s Doing Business in Atlantic Canada guide, chapters 16-17.)
According to Tsilhqot’in Nation, courts should adopt a “functional approach” when reviewing pleadings in Aboriginal cases—not just Aboriginal title cases, presumably—and should not strike pleadings on technical grounds unless the current state of the pleadings creates “clear prejudice” to the other side. A functional approach is meant to take into account the evidentiary difficulties, legal uncertainties, and shifting positions in this area of the law. (See paragraphs 19-23.)
The duty to consult
Tsilhqot’in Nation confirmed existing law on the Crown’s duty to consult (“DTC”) at paragraph 78:
Where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Aboriginal title and, if appropriate, accommodate the Aboriginal right.
The Court also provided important context on how the fact-specific spectrum of consultation and accommodation will look where Aboriginal title is at issue (see paragraphs 79-92):
- “A dubious or peripheral claim”: Perhaps only a duty of notice
- A potentially valid claim: Consultation and accommodation as appropriate
- A particularly strong claim (e.g. “shortly before a court declaration of title”): Increased consultation and accommodation, including preservation of the Aboriginal interest “pending final resolution of the claim”
- Established Aboriginal title: Consent of the Aboriginal group OR if no consent, consultation and justification
As Chief Justice McLachlin explained, the “required level of consultation and accommodation is greatest where title has been established.” So whether it’s a new project or a project that began before title was established, “the Crown must seek the consent of the title-holding Aboriginal group to developments on the land” (para 90).
If the group does not consent, the Crown must (a) fulfill its procedural duty to consult, and (b) justify its planned development onsubstantive grounds. This heavy onus is grounded in section 35 of the Constitution Act, 1982.
The Crown must prove the following elements to justify proposed development on land held under Aboriginal title where the Aboriginal group has not consented:
- There is a “compelling and substantial public purpose” (paras 81, 84). This element is to be considered from both “the Aboriginal perspective as well as from the perspective of the broader public.” The Court cited Delgamuukw for examples of projects that could be covered here, including agriculture, forestry, mining, hydro, environmental protection, and economic development.
- The project is “consistent with the Crown’s fiduciary duty towards Aboriginal people” (para 86). There are two prongs to this element:
- The Crown must recognize that Aboriginal title is collective and incorporates the interest of future generations, so a project’s long-term ramifications have to be considered.
- Using an Oakes-esque balancing test, the Crown must show that its proposed development is proportionate to the intrusion upon Aboriginal title (see para 87):
- Rational connection: “the incursion is necessary to achieve the government’s goal”
- Minimal impairment: the government will “go no further than necessary” to achieve its goal
- Overall proportionality: “the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest”
If this justification test is not met, the Crown may have to cancel its proposed project (para 92).
Short of having a project cancelled or quashed, the Crown could also face injunctive relief, a court order to consult, and / or damages for breaching its duties during this process.
The Supreme Court did not discuss how far the Crown can go in delegating operational or procedural aspects of its DTC to project proponents, although this was not really at issue in Tsilhqot’in Nation and remains unresolved in the case law. While the decision reaffirms that ultimate responsibility rests with the level of government involved, proponents will continue to be heavily involved in many projects and should be aware of how Aboriginal title claims affect the spectrum of consultation and accommodation. Proponents in Atlantic Canada should also be aware that each province has its own consultation policy, as described in Doing Business in Atlantic Canada, chapter 16.
Application of provincial legislation
A key point from Tsilhqot’in Nation relates to the application of provincial laws to lands held under Aboriginal title, which will be a relevant issue across Atlantic Canada in areas where title is or becomes established.
On the specific facts of the case, the Court concluded that the British Columbia Forestry Act would no longer apply to the land in question: timber on Aboriginal title land could not fit the definition of “Crown land” in the Act. However, the Court noted that the provincial legislature could amend the Act as long as constitutional boundaries were respected. (See paragraphs 115-116.)
More generally—and without getting into the detailed constitutional doctrines at stake—the Court concluded that “provincial laws of general application” will be presumed to apply to land held under Aboriginal title, unless the provincial law unjustifiably infringes the Aboriginal rights in the land.
An infringement will be demonstrated if the provincial legislation is unreasonable; imposes undue hardship on the Aboriginal group; and prevents the Aboriginal group from exercising its right over the land in its preferred manner. It is unlikely that provincial legislation regulating matters like environmental protection would be found to infringe Aboriginal title, so legislation of that nature would likely apply; on the other hand, legislative approval for granting timber licences on Aboriginal title land to a third party without Aboriginal consent would likely be an infringement and need to be justified (see paragraphs 123-124).
Similar to the DTC context, the provincial Crown can justify a legislative infringement on proof that it (1) fulfilled its duty to consult; (2) there is “a compelling and substantial legislative objective in the public interest”; and (3) “the benefit to the public is proportionate to any adverse effect on the Aboriginal interest” (paragraph 125).
By using a similar model for justification, the Supreme Court is (a) affirming the paramount status of section 35 of the Constitution Act, 1982 and infusing section 35’s requirement for reconciliation between the state and Aboriginal peoples into concrete legal tests; (b) attempting to streamline its approach to Aboriginal law by using modified versions of the same test in related areas; and (c) clarifying and firming up the burden on the Crown where Aboriginal rights have been proven and would be infringed by the project, legislation, or regulation at issue. This aspect of the decision should be applicable across the region with little to no modification required, where Aboriginal title exists.
The most recent Supreme Court pronouncement on Aboriginal law will need to be adapted before it can be applied in Atlantic Canada, whether in negotiations or in litigation. But that does not mean it won’t be a useful development. As long as regional differences are researched and recognized, the ruling in Tsilhqot’in Nation can offer points of clarification, new arguments, and clearer legal tests for Aboriginal groups, the Crown, and even proponents.