The following is cross-posted, with permission, from the Miller Thomson Aboriginal Law Update authored by Sarah D. Hansen and Kennedy A. Bear Robe of Miller Thomson's Vancouver office.

On June 26, 2014, the Supreme Court of Canada ("SCC") released its landmark decision in Tsilhqot'in Nation v. British Columbia. At the heart of this decision, the SCC was confronted with the question of Aboriginal title and what constitutes a justifiable incursion on such title. For the first time, the SCC made a declaration of Aboriginal title over a large tract of land claimed by the Tsilhqot'in Nation located in the Chilcotin region of the west central interior of British Columbia. The SCC pronounced that once Aboriginal title has been established, development of Aboriginal title lands by the Crown or third-parties can only proceed either by: (i) obtaining First Nation consent; or (ii) the Crown demonstrating that it has discharged its duty to consult and accommodate and justifying its infringement on title under the Sparrow framework.

The Tsilhqot'in Nation is a semi-nomadic grouping of six bands sharing common culture and history with the Tsilhqot'in Nation's territory. The dispute concerning Tsilhqot'in title to this area has a long history dating back to 1989 when the Province of British Columbia granted a company a right to commercial logging activities in Tsilhqot'in territory. Thereafter, the Xeni Gwet'in First Nations government (one of the six bands that make up the Tsilhqot'in Nation) objected and sought a declaration prohibiting this activity within Tsilhqot'in territory.

The trial started in 2002 and spanned over 5 years with approximately 339 days spent in court prior to a decision being released in 2007 (2007 BCSC 1700). In the end, Mr. Justice Vickers' decision of the British Columbia Supreme Court fell short of a declaration of Aboriginal title due to a pleadings technicality. However, he stated in his judgment that the Tsilhqot'in Nation was entitled to a declaration of Aboriginal title for a portion of the claim. On appeal at the British Columbia Court of Appeal, Mr. Justice Groberman incorrectly applied a test of Aboriginal title premised on "small spots" or site-specific occupation, which led him to hold that the Tsilhqot'in claim to title had not been established (2012 BCCA 285).

The Tsilhqot'in Nation appealed to the SCC.

SCC Decision

The SCC found in favour of the Tsilhqot'in Nation on the issue of Aboriginal title.

In overturning the decision of the BCCA, which sought to apply the site-specific occupation test of Aboriginal title, the SCC clarified the Delgamuukw test and concluded that the following three requirements must be present to establish Aboriginal title:

  1. sufficient pre-sovereignty occupation;
  2. continuous occupation (where present occupation is relied on); and
  3. exclusive historic occupation.

The Aboriginal claimant has the onus of establishing Aboriginal title by satisfying these three requirements. The SCC warned against approaching the above analysis strictly through the application of common law concepts. Instead, both the Aboriginal and common law perspectives must be given equal weight in such analysis. The SCC affirmed that Aboriginal title "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." In doing so, the SCC rejected the BCCA's theory of a "network of specific sites over which title can be proven."

 i. What Constitutes Sufficient Occupation?

On the question of the first requirement, the SCC held:

To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purpose. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.

The question of sufficient occupation will always depend on the Aboriginal peoples' way of life and laws, including those who were nomadic or semi-nomadic. This is the "culturally sensitive" approach, which takes into consideration the First Nations' laws, world views, practices, size, technological ability, the character of the land being claimed and any other applicable indicia of occupation.

 ii. Continuity of Occupation

An Aboriginal claimant must provide evidence of occupation prior to assertions of Crown sovereignty. If present occupation is relied on, then the requirement of continuity between present and pre-sovereignty occupation arises. Simply put, the occupation must be rooted in pre-sovereignty times.

 iii. Exclusivity of Occupation

Lastly, the Aboriginal claimant must establish exclusive occupation of the land at the time of the Crown's assertion of sovereignty. Again, this inquiry requires an understanding of both the First Nations' and the common law notion of exclusivity. Additionally, the "culturally sensitive approach" must be applied in such a manner so as to consider the specific context and characteristics of the Aboriginal peoples' way of life and legal orders.

Once Aboriginal title has been established by fulfilling these three criteria, infringement must be justified assuming consent has not been given. The SCC clarified the justification analysis, as set out in Sparrow, by stating:

[t]o justify overriding the Aboriginal title-holding group's wishes on the basis of the broader public good, 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 group.

Notwithstanding the above justification analysis, the SCC held that the "Crown must seek the consent of the title-holding Aboriginal group to developments of the land," prior to initiating its justification analysis.

In summary, Aboriginal title confers a cognizable legal right to the land itself. As "the Crown does not retain a beneficial interest in Aboriginal title land," it must justify incursions on title and cannot deprive future title holders the "right to the benefits associated with the land – to use it, enjoy it and profit from its economic development." Additionally, Aboriginal title includes the following bundle of rights: "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."

Ultimately, the SCC upheld the trial judge's decision that the Tsilhqot'in had established Aboriginal title to the claim area at issue. The appeal was allowed and a declaration of Aboriginal title over the area was made. Additionally, the SCC concluded that the honour of the Crown was not upheld as British Columbia failed to consult and accommodate the Tsilhqot'in Nation in respect of provincial-authorized forestry activities within Tsilhqot'in territory pending resolution of Tsilhqot'in's land claim.

In light of the above conclusions, a consideration of the relationship between provincial laws and Aboriginal title was not necessary for the disposition of the case. Nonetheless, the SCC concluded that provincial laws of general application apply to Tsilhqot'in's title lands subject to the following constitutional constraints: (i) s. 35 of the Constitution Act, 1982; and (ii) s. 91(24) of the Constitution Act, 1867. Additionally, the SCC considered the concurrent issues of whether or not the Province of British Columbia can legislate in respect of Aboriginal rights, including title and whether Aboriginal rights, including title, fall at the core of federal regulatory jurisdiction under s. 91(24) of the Constitution Act, 1867. The SCC held that the doctrine of inter-jurisdictional immunity did not apply as "s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title." Therefore, neither level of government is allowed to legislate in a way that interferes with Aboriginal rights, including title without satisfying the requirement of proving that such incursions are justified on a "compelling and substantial" standard.

Moving Forward

As a result of this decision, the Court has warned against Crown and third party activities that proceed on a basis inconsistent with the honour of the Crown. The SCC exemplified this point by stating that "if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing." This statement strongly suggests that Crown and third parties should pre-emptively seek a collaborative framework directly with First Nations for meaningful dialogue on all high-level decisions, management and use of lands and resources within lands claimed by First Nations.

Government-to-Government Negotiations

First Nations and the Province of British Columbia may seek to advance a framework for meaningful discussions in respect of land use planning, management, tenuring and revenue sharing. These four areas have been identified as mutually important objectives, pursuant to "The New Relationship" vision statement. In addition, government-to-government discussions may include a process which will seek to harmonize the jurisdictional interplay between federal, provincial and Aboriginal title and laws over specific lands. By choosing to adopt and implement a collaborative framework, the parties will advance the concurrent objectives of recognition and reconciliation. We are confident that moving forward on this basis will be seen as an opportunity to ensure that First Nations' can exercise their "right to proactively use and manage the land" and that the honour of the Crown is upheld.

Third Party Negotiations

The Crown may only delegate procedural elements of consultation to third parties seeking to develop resource and energy projects and related infrastructure within First Nations' territory. Nevertheless, companies would be well advised to seek a framework for meaningful discussions. Such discussions may be used as a way to ensuring that project impacts on Aboriginal rights including title are avoided, minimized, mitigated and accommodated. In some instances, these discussions may lead to a position whereby the parties may be able to contractually deal with concerns regarding specific impacts to Aboriginal rights, including title. Given the strong statements in this decision, we are confident that third parties will be motivated to advance a collaborative approach with First Nations.

Guidance for Legislative and Regulatory Policy

The SCC decision provides regulatory certainty by making it clear that provincial laws of general application apply to Aboriginal title lands, subject to constitutional limits.  It holds that federal and provincial governments and legislatures can infringe upon proven and vested Aboriginal title provided that the infringement meets the established test for "justification" (i.e., a compelling and substantial governmental objective and action that is consistent with the Crown’s fiduciary duty). In all cases, the test for justification will be fact-specific in relation to the nature of the Aboriginal title and the nature and extent of the infringement.

In jurisdictions where Aboriginal title is asserted but not yet proven, the decision confirms and clarifies that the Crown's duty to consult and accommodate continues to apply to activities or decisions by the Crown that may affect asserted, but unproven, aboriginal title. Governments and legislatures will now need to consider the test for justification when crafting legislation, regulations, or executive policy that impacts upon Aboriginal land claims.  Governments in every province should also conduct extensive reviews of their current legislation affecting lands that are the subject to aboriginal claims to ensure that the objectives of such legislation are clear, compelling, substantial, and capable of justification.