On June 26, 2014, the Supreme Court of Canada released its widely anticipated decision in Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 providing more certainty on the test for Aboriginal title and the application of provincial laws to Aboriginal title lands.
In short, semi-nomadic or nomadic Aboriginal peoples may establish title to land they exclusively occupied. Prior to proof of Aboriginal title, provincial laws of general application apply to claimed Aboriginal title lands but the Haida test for consultation applies. Provincial laws of general application can apply to proven Aboriginal title lands if the application of the law can be justified under the Sparrow test.
Background and Trial Judgment
The Tsilhqot’in Nation are a semi-nomadic Aboriginal collective comprising individuals and families from Xeni Gwet’in (Nemiah), Tl’esqox (Toosey), Tsi Del Del (Redstone), Tletinqox-t’in (Anaham), ?Esdilagh (Alexandria), Yunesit’in (Stone) and the Ulkatcho First Nation.
In 1989, Chief Roger William of the Xeni Gwet’in First Nation Government brought a claim on behalf of all members of the Tsilhqot’in Nation asserting Aboriginal title to the entirety of two tracts of land, Tachelach'ed and the Trapline Territory (collectively, the “Claim Area”). The Claim Area encompasses 141,769 hectares of land in the Cariboo-Chilcotin region of the central interior of British Columbia, in the part of the traditional territory claimed by the Tsilhqot’in Nation for which the Xeni Gwet’in are the caretaker. They also claimed for a declaration of various Aboriginal rights in the Claim Area.
The trial lasted 339 days spanning almost five years and produced lengthy reasons for judgment, albeit much of the decision was non-binding. In the end, the trial judge dismissed the claim for Aboriginal title due to a technical problem with the pleadings. His finding was without prejudice to the Tsilhqot’in’s right to claim title for a portion of the Claim Area (and damages) in the future. As well, he granted the declaration of Aboriginal rights, and found those rights had been infringed by forestry activities in the Claim Area (comprising 5% of their traditional territory), but did not award damages for the infringement.
The trial judge also provided an opinion on the legal consequences of a declaration of Aboriginal title, had the declaration not been precluded by the pleadings issue. The trial judge opined that provincial legislation would be constitutionally inapplicable to Aboriginal title lands. In practical terms, British Columbia would have no authority to justifiably infringe Aboriginal title or to authorize timber harvesting on Tsilhqot’in title lands.
With respect to the title claim, the trial judge accepted that a level of occupancy sufficient to prove Aboriginal title could be established over broad tracts of land within the Claim Area based on the seasonal movements of the Tsilhqot’in throughout the territory (while attempting to repel others who sought to use the land) prior to sovereignty in 1846.
Court of Appeal Judgment
The Court of Appeal upheld the trial decision in all respects, but disagreed with the trial judge’s reasoning with respect to title, holding that “Aboriginal title must be proven on a site-specific basis”. According to the Court of Appeal, the site-specific approach, paired with a broad approach to defining rights, provides “a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians.” Since the Court of Appeal did not find sufficient occupancy to ground a title claim, it declined to address the related issue of whether provincial legislation applies to Aboriginal title lands.
Supreme Court of Canada Judgment
Only the Court of Appeal’s finding with respect to Aboriginal title was appealed to the Supreme Court of Canada, and the related issue of the constitutional applicability of provincial forestry legislation to Aboriginal title lands.
Adopting the findings of the trial judge, the Supreme Court of Canada allowed the appeal and unanimously concluded that the Tsilhqot’in had established Aboriginal title to the portion of the Claim Area identified by the trial judge as exclusively occupied by Tsilhqot’in.
The judgment includes a number of significant findings outlined below.
Test for Aboriginal title
In Delgamuukw, the Court commented Aboriginal title is based on “occupation” prior to European sovereignty in the area. Applying the test set out in Delgamuukw, three characteristics of “occupation” must be proven: it must be sufficient, it must be continuous, and it must be exclusive. An Aboriginal claimant should not be forced into rigid application of common law concepts, and instead these characteristics “are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.” (para. 32)
Sufficiency of Occupation : In determining what constitutes sufficient occupation, the court must look to 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. 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.
Continuity of Occupation:For evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times. This is a factual determination in each case.
Exclusivity of Occupation:As with sufficiency, the exclusivity requirement should be viewed from both common law and Aboriginal perspectives, taking the context and characteristics of the Aboriginal society into account. The Aboriginal claimant group must have had “the intention and capacity to retain exclusive control” over the lands (para. 47, citing Delgamuukw). The presence of other groups does not bar exclusivity of occupation. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.
What rights does Aboriginal title confer?
Aboriginal title confers a number of rights on the title-holder: “ownership rights similar to those associated with fee simple: 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.” (para. 73). However, the use of the land must be consistent with the communal nature of the interest vested in both present and future generations.
Infringement of title
Once Aboriginal title is proven, government actions that impact the land, not consented to by the title-holder, are subject to the Crown’s procedural duty to consult, and must also be justified in accordance with Sparrow, requiring (i) a compelling and substantial public interest and (ii) conduct consistent with the Crown’s fiduciary duty. This final requirement entails that the incursion is both minimally impairing and proportional in impact (its benefits must not be outweighed by its adverse effects on the Aboriginal interest).
Where Aboriginal title is as yet unproven, the Crown only owes a procedural duty to consult, and if appropriate, accommodate the unproven Aboriginal interest. Once title is established, it is incumbent on the Crown to reassess its conduct and legislation in order to ensure its fiduciary duty has been discharged.
Application of provincial laws to Aboriginal title land
The Court found the provincial government indeed possesses legislative power over Aboriginal title lands. In reaching this conclusion, the Court expressly rejected its previous decision Morris, finding the doctrine of interjurisdictional immunity will not apply to questions involving Aboriginal title lands, but instead that the approach set out in Sparrow governs. As a result, provincial laws of general application apply to Aboriginal title lands, unless they are unreasonable, impose a hardship or deny the Aboriginal title holders their preferred means of exercising their rights, and such restrictions cannot be justified.
Also in this decision, the Court provides guidance on how to approach pleadings in land claims. The SCC agreed with the BC Court of Appeal that a functional approach should be taken, overlooking minor defects where the pleadings nevertheless give parties and the court the outline of the material allegations and relief sought. A technical approach to pleadings would undermine the goals of reconciliation between the Aboriginal group and broader Canadian society.
Conclusion with respect to the Tsilhqot’in
Noting the trial judge found that the evidence supported sufficient occupation on the basis that there was regular and exclusive use of the land, the occupation was continuous, and that the Tsilhqot’in expelled people from their land, the Supreme Court of Canada declared that the Tsilhqot’in held title over the broad tracts of land identified by the trial judge as exclusively occupied by Tsilhqot’in.
In addition, the Court found by failing to consult with the Tsilhqot’in, the Crown breached its duty to consult in issuing licences permitting forestry activity in the Claim Area before title was declared.
This is a landmark ruling that will guide First Nations, government, and proponents in their dealings related to land over which title is asserted for years to come. It confirms semi-nomadic and nomadic Aboriginal groups may be able to establish Aboriginal title, and once title is established, government is required to justify any infringement. Prior to establishing title, the Crown’s duty to consult continues to govern Crown-Aboriginal relations.