On June 26, 2014, the Supreme Court of Canada rendered its unanimous decision on Tsilhqot’in Nation v. British Columbia (the “Tsilhqot’in Nation Decision”). In its reasons, the Court made a declaration of Aboriginal title over certain lands within the Tsilhqot’in Nation’s traditional territory, marking the first time that a Court has declared Aboriginal title to land. “Aboriginal title” conveys significant rights including the right to exclusive use and occupation of the lands at issue.

In this bulletin, we examine the implications of the Supreme Court of Canada’s decision on the application of the Forest Act to “Aboriginal title lands” in BC. For a more general overview of the Tsilhqot’in Nation Decision, please read the Davis LLP bulletin, “The Landmark Tsilhqot’in Nation Decision: What it Means for Project Developers in Canada”, prepared by Heather L. Treacy, Q.C. and Laura Easton of our Calgary office.

Aboriginal Title to Land

This appeal arose from the grant of a forest licence in 1983 by the Province of British Columbia under the Forest Act within the traditional territory of the Tsilhqot’in Nation. Members of the Tsilhqot’in objected to the forest licence and, in 2002, the matter proceeded to a lengthy trial at the BC Supreme Court, lasting 339 trial days over a period of 5 years. The trial judge found that, despite their semi-nomadic society and relatively small population, the Tsilhqot’in had demonstrated sufficient, continuous and exclusive occupation of the territory claimed prior to the sovereignty of Canada to establish Aboriginal title - that is, to exclusive use, possession and occupation of the land similar to rights in fee simple (though, without similar rights of alienation). However, at this point, the claim was dismissed for procedural reasons.

The Tsilhqot’in Nation appealed the decision to the BC Court of Appeal where, in 2012, the Court applied a stricter reading of the test to prove Aboriginal title. While the Court of Appeal declared that the Tsilhqot’in had Aboriginal rights to hunt, fish and trap, the Court found that the semi-nomadic nature of the Tsilhqot’in people was not sufficient to ground a declaration of title. The subsequent appeal to the Supreme Court of Canada was heard in 2013.

Granting of Aboriginal Title and Failure to Consult

The Court applied the test for Aboriginal title that it had previously established in Delgamuukw v. British Columbia (“Delgamuukw”). Specifically, the Court required the Tsilhqot’in Nation to demonstrate that the lands were sufficiently occupied, that occupation was continuous between the present and the time of Canadian sovereignty, and that occupation was exclusive at sovereignty. The Court agreed with the trial judge in finding that, even though the population was small relative to the large territory, the use of the land was sufficiently regular to show an intention of the Tsilhqot’in to possess the land in a way that supports a declaration of Aboriginal title.The Tsilhqot’in also sought a declaration that the Province had breached its duty to consult with the Tsilhqot’in with respect to proposed forestry activities under forest licences issued pursuant to the Forest Act over lands subject to its claim of Aboriginal title. The Court agreed that the planning and approval of these forestry activities took place without meaningful consultation and, accordingly, the Court declared that the Province had breached its duty to consult with the Tsilhqot’in Nation.

The Application of the Forest Act to Aboriginal Title Lands

While not strictly necessary for the disposition of the matters at issue in the appeal, the Court went on to examine the application of the Forest Act to Aboriginal title land for the sake of efficiency.

Under the Forest Act, the Crown grants authority to harvest “Crown timber”, a phrase defined in section 1 of the Forest Act as “timber on Crown land.” In turn, the Land Act defines ”Crown land” for purposes of the Forest Act as “land … or an interest in land, vested in the government.” The Court concluded that Aboriginal title land does not fall within this definition of Crown land. Consequently, timber on Aboriginal title lands is no longer “Crown timber” and the Forest Act will no longer apply to lands that are subject to a declaration of Aboriginal title. The Court focused on the application of the Forest Act to Crown timber. This leaves open the potential application of those parts of the Act that apply to all timber (timber marking and scaling) to Aboriginal title lands.The Court indicated that the provincial legislature could amend the Forest Act so that it would apply to Aboriginal title lands. Were the Province to pursue any such amendment, the legal validity of the amendment would, in the first instance, depend upon whether the legislation infringed an Aboriginal right and then, if so, whether the infringement was “justified” in accordance with the requirements of existing case law.

The Court stated that a grant of harvesting rights under the Forest Act to a third party over Aboriginal title land was a “serious” infringement of Aboriginal rights. As such, the Crown would have an obligation to “justify” any such amendment to the Forest Act that purported to allow the Crown to grant harvesting rights over Aboriginal title lands. Under existing case law, “justification” would require the Crown to demonstrate that:

  1. it complied with its procedural duty to consult with the rights holder and appropriately accommodate those rights;
  2. a compelling and substantial legislative objective exists in support of the infringement; and
  3. the benefit to the public interest is proportionate to any adverse effect of any infringement of on the Aboriginal interest at issue.

While the Court in Delgamuukw had previously accepted that forestry and other resource development projects could justify an infringement of Aboriginal title, the Court found the infringements in this case were not justified. The Court rejected justification on the basis that there was no “compelling and substantial’ objective to support the grant of harvesting rights that infringed upon the Aboriginal title of the Tsilhqot’in Nation: the economic benefits derived from the logging in this case were insufficient compared to the detrimental effects on Aboriginal rights. The Court left open the possibility that harvesting rights could be granted on Aboriginal title lands, so long as the Crown was able meet the test for justification. The Crown was simply unable to do so in this case.

Importantly, the Court distinguished between the disposition of harvesting rights to third parties under the Forest Act, and what the Court called “general regulatory legislation.” Examples the Court gave with respect to the latter included forest management activities directed towards wildfire and pest control. While the Court stated that the application of these sort of legislative provisions would continue to be assessed on a case-by-case basis, the Court also suggested that such applications would generally not infringe Aboriginal rights.

Reconciling Aboriginal Title Claims with Harvesting Rights

The Tsilhqot’in Nation Decision will not change much in the short-term for holders of existing harvesting rights under the Forest Act. As was the case immediately before the Court delivered its decision, most (if not all) harvesting rights granted under the Forest Act relate to lands that are probably subject to one or more claims of Aboriginal title. Until Aboriginal title is proven and generates a court declaration to that effect, a claim to Aboriginal title is just that - a “claim”. Nothing has changed in this regard. Meanwhile, government and the holders of Crown harvesting rights must carry on in accordance with the consultation and accommodation requirements that the Supreme Court of Canada has previously set out in Haida v. British Columbia. The key point in this respect is that the stronger the claim, the deeper the level of consultation and accommodation that is required. Again, nothing has changed in this regard.

Moreover, while the Tsilhqot’in Nation Decision represents the first time the Supreme Court of Canada has made a declaration of Aboriginal title to land, this possibility has existed since at least the Court’s 1997 decision in Delgamuukw. The potential for a declaration of Aboriginal title is not new; nor are the possible consequences of any such declaration. The Court’s decision in Tsilhqot’in Nation has not changed the reality of Aboriginal rights and title in BC; rather it has focused attention on that reality.

The spectre that remains is the potential for lawsuits on account of damages for timber harvesting under the authority of the Forest Act prior to a declaration of Aboriginal title. While sufficient consultation and accommodation may minimize damages in any particular instance, the problem is that most, if not all, “Crown lands” subject to harvesting rights under the Forest Act are likely also subject to some claim to Aboriginal title. With the Tsilhqot’in Nation Decision, the Supreme Court of Canada has demonstrated that even a nomadic First Nation with a relatively sparse population can succeed with a claim of Aboriginal title over a relatively expansive tract of land. This result will undoubtedly have some effect upon the Crown’s contingent liability calculus.

The Court has clearly indicated that harvesting activities will not infringe Aboriginal title if there is consent of the First Nation that holds the Aboriginal title. In this sense, the Court has pointed out the direction of how it expects government to reconcile Aboriginal title claims with harvesting rights under the Forest Act through the treaty settlement process.

Erin Hunter, R.P.F.