On June 26, 2014, the Supreme Court of Canada (the “Court”) issued a landmark ruling in the area of aboriginal law with its decision in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (the “Decision”). The Court declared that the Tsilhqot’in Nation, a semi-nomadic Aboriginal group, hold Aboriginal title over certain lands in central interior British Columbia, the first declaration of its kind in judicial history. In reaching this decision, the Court clarified the nature of Aboriginal title and the test for proving it. This bulletin will provide a general overview of the case, its guiding principles and the implications for project developers in various industries.
Background on Tsilhqot’in Nation v British Columbia
The BC Supreme Court had found that title had been proven over broad portions of the area claimed but did not issue a formal declaration due to an error in the pleadings. The Court of Appeal overturned this decision and held that Aboriginal title needed to be proven on site-specific claims and could not be advanced for greater territory based on general geographic regions. This was further appealed to the Court.
Principles of Aboriginal Title
The Court reviewed past rulings in the area of Aboriginal law and noted the following principles:
- The Crown’s title to land is burdened by the pre-existing rights of Aboriginal people arising from their use and occupation of the land prior to the arrival of European settlers (para 12, citing Guerin v The Queen,  2 SCR 334 at 379-82).
- Section 35 of the Constitution Act, 1982 protects all Aboriginal rights that have not been extinguished prior to April 17, 1982, making the Crown a fiduciary in the protection of those rights, and that legislation can infringe section 35 protected rights only if it furthers a “compelling and substantial” purpose and accounts for the “priority” of the Aboriginal interest under the Crown’s fiduciary obligations (para 13, citing R v Sparrow,  1 SCR 1075 at 1113-19).
- Infringements on Aboriginal title can be justified under section 35 of the Constitution Act, 1982, and the extent of involvement or participating in the decision making to which Aboriginal people will be entitled will vary depending on the severity of the infringement (para 16, citing Delgamuukw v British Columbia,  3 SCR 1010, (“Delgamuukw”) para 168).
- Where Aboriginal title has been claimed but not yet established, there is a spectrum of consultation. The need for consultation will be greater where the claim for title is stronger, and where the infringement would have a more serious and potentially adverse impact on the title being claimed (para 17, citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, at para 24).
- Aboriginal title grants the right of exclusive use and occupation of the land, whether or not such use is traditional, provided the uses do not deprive future generations from benefitting from the land.
What is the Test for Aboriginal Title?
The Court noted that when examining claims for Aboriginal title it is important to consider issues such as occupation and use by both common law and Aboriginal standards. Aboriginal title will be made out where occupation is “sufficient”, “continuous” (where based on present occupation), and “exclusive” (at paras 25-26, citing Delgamuukw at para 143).
Sufficiency of occupation may be demonstrated by constructed dwellings, cultivation, regular usage of defined tracks of land for exploitation of resources, and historical behaviour that would communicate to third parties that the group holds the land for its own purposes. Regular use of lands for fishing, hunting, trapping or foraging may be sufficient where that usage demonstrates “an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law (para 42).” The indicia of occupation may differ between Aboriginal groups based on size, resources, and manner of living, as well as the geography of the lands being claimed. These factors may also lead to a different concept of “possession” than found at common law.
Where an Aboriginal group relies on present occupation as proof of occupancy pre-sovereignty, the group will need to demonstrate continuity. This does not need to be an unbroken chain, but rather means that current occupation must be rooted in pre-sovereignty times.
Exclusivity will be determined based on the intention and capacity of the claimant group to control the land. This may be demonstrated by the exclusion of others, or the granting of permission by the access to others. The Court further noted that a lack of any challenges to occupancy may demonstrate the group’s intention and capacity to control. This third step must also be viewed through the lenses of both common law and Aboriginal custom.
Justification of Infringement on Aboriginal Title
Because Aboriginal title grants the right of control over the land, others seeking to use the land (including the Crown) must obtain consent of the title holders. The duty to consult will be on the spectrum referenced above, and must be exercised prior to carrying out the potential infringing act. The duty to consult and potentially accommodate is required even where title is unproven. Once title is established (even if after a project has commenced), without the consent of the Aboriginal title holders, the Crown’s only option is to demonstrate that the infringement is justified under section 35 of the Constitution Act. As noted by the Court at paragraph 77:
“To 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: Sparrow.”
Provided there is a compelling and substantial objective, certain interests capable of justifying an incursion may include the development of natural resource industries, economic development, protection of environment, building infrastructure or the settlement of foreign populations to further the compelling objectives (at paras 83-84, affirming interests set out in Delgamuukw at para 165).
The Court noted that the test for justification under section 35 is further defined by its role as a fiduciary. It must act in a way that respects the successive generational interest inherent in Aboriginal title, and must ensure that the infringement is necessary to achieve the government’s goal, that the infringement minimally impairs the rights, and that the expected benefits of the impairment are not outweighed by adverse effects on Aboriginal interest.
Court Finds Crown Breached Duties Owed to Tsilhquot’in Nation
The Court declared that the Tsilhqot’in held aboriginal title to the lands in question and that the Crown had breached its duties owed to the Tsilhqot’in. The Court relied heavily on the fact-finding of the trial judge, noting that the small Tsilhqot’in group had regularly used the lands where he had found title; that continuity had been established through recent occupation, archeological evidence, historical evidence, and oral evidence of Aboriginal elders; and that prior to sovereignty, the Tsilhqot’in had repelled other people from their land and that those wishing to cross their land had required permission. The Court found no reason to disturb the findings of the trial judge.
The Court acknowledged that the rights held by the Tsilhqot’in at the time the province of British Columbia had issued licences for third party forestry activity and related infrastructure construction were not yet legally recognized. It is clear from the decision that the harvest of timber by a third party over lands has a potentially serious adverse impact on the title being claimed resulting in consultation at the higher end of the spectrum. The Crown breached its duties to the Tsilhqot’in when it failed to consult them and accommodate their interests. In addition to failing this first step of the test for justifying infringement, the Court found that the Crown’s actions were not backed by compelling or substantial objectives, as the evidence did not support the Crown’s alleged objectives of economic benefit and the need to stop or limit the infestation of the mountain pine beetle.
The Implications of the Decision: Why Due Diligence is Crucial
The implications of this decision are significant for several reasons. The Tsilhqot’in Nation is one of hundreds of indigenous groups in British Columbia with unresolved land claims. Therefore, this decision provides important guidance from our highest court on what is required to establish Aboriginal title, including as it pertains to semi-nomadic Aboriginal peoples. Most importantly, this decision demonstrates the critical role of the Crown in undertaking consultation and, if appropriate, accommodation prior to the establishment of Aboriginal title. After Aboriginal title to land has been established, the Crown must then seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982.
The duty placed upon the Crown is significant and, if not carried out appropriately, may affect the development of projects by project proponents. As the Court noted, 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. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.
While provincial laws of general application will apply to lands held under Aboriginal title, there are important constitutional limitations. Any limitations imposed by provincial laws must not be unreasonable; they must not impose undue hardship; and they must not deny the holders of the right their preferred means of exercising the right. It may be predicted that laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests will often pass this test. However, the issuance of licenses, permits or leases on Aboriginal title land that result in a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement, must be justified in those cases where it is done without Aboriginal consent. While project proponents are always encouraged to undertake their own consultation with Aboriginal groups, it will become increasingly important to carry out proper due diligence where claims to Aboriginal title are being advanced. More specifically, it will be important to confirm the nature and status of these claims to better assess the timelines and required steps associated with project development. Finally, for project proponents, in cases where Aboriginal title has not yet been proved and certainly in cases where it has been proved, it will be crucial to carefully monitor the Crown’s conduct to ensure that proper consultation and consent or proper justification is obtained and established where projects are at stake.