Introduction

On June 26, 2014 the Supreme Court of Canada (the “SCC”) released its much anticipated decision in Tsilhqot’in Nation v. British Columbia1. The case is significant, in part, because it is the first SCC decision where the applicant, First Nation, successfully proved its claim to Aboriginal title. The case also provides further guidance for government and industry interested in new developments on lands that are subject to Aboriginal title.  Overall, it is a logical and natural evolution of the jurisprudence developed by the SCC in cases such as Calder2Guerin3Sparrow4  and Delgamuukw5.

Background

The Tsilhqot’in Nation (the “Tsilhqot’in”) is a group of six indigenous semi-nomadic bands situated in British Columbia. In 1983, the Government of British Columbia granted a commercial logging licence for an area that the Tsilhqot’in considered part of their traditional territory. In lengthy reasons, which followed a 339-day trial spanning over a five-year period, the trial judge concluded that the Tsilhqot’in were entitled to a declaration of Aboriginal title for part of their claimed traditional land, but refused to make that declaration for procedural reasons.6  This territory potentially subject to Aboriginal title included not only village sites but also territories that the Tsilhqot’in’s ancestors used regularly and exclusively for hunting, fishing and other activities.

The British Columbia Court of Appeal overturned the trial judge’s decision but left open the possibility that the Tsilhqot’in could, in the future, bring a claim for Aboriginal title to certain specific sites with defined boundaries that were used intensively at the time of European sovereignty. Beyond those limited title claims, the Court of Appeal held that the Tsilhqot’in could exercise their established aboriginal rights.7

The Decision

Test for Aboriginal title

Writing for a unanimous Court , McLachlin CJC largely affirmed the SCC previous jurisprudence on the test for Aboriginal title. To establish a claim for Aboriginal title, the burden rests with the applicant to establish that, at the assertion of Crown sovereignty:8

  1. Their ancestors occupied the lands in a manner sufficient to ground their claim,
  2. They have continuously occupied those lands since the assertion of sovereignty (if current occupation is relied upon to ground the title claim), and
  3. They have exclusively occupied and exercised effective control over the lands. 

The Court’s  approach to the first branch of the test is of particular importance. The SCC rejected the notion relied upon by the Court of Appeal that the Tsilhqot’in needed to demonstrate intensive occupation of particular tracts of land to establish Aboriginal title. It held that Aboriginal title can be established by showing regular use of the territory by ancestors based on 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” in a manner “comparable  to what would be required to establish title at common law”.9

The regular use of the territory is determined by examining the specific circumstances of each case and, in particular, the characteristics of the Aboriginal group (number of members, nomadic or semi-nomadic way of life, etc.), and the character of the land subject to the claim (size, topography, availability of the resources necessary to sustain the Aboriginal group, etc.).

The SCC also noted that not every nomadic passage or use will ground title to land.10  Moreover, the occupation cannot be purely subjective or internally understood by the Aboriginal group.11

Characteristics of Aboriginal title

The SCC reiterated its past comments on the rights conferred by Aboriginal title.  Aboriginal title holders have an exclusive right to occupy the lands, decide how to use the lands, and to the economic benefits of those uses.12  The SCC emphasized that Aboriginal title is sui generis or unique. It is a communal right held for the benefit of all present and future members so that any contemplated uses must not substantially deprive future generations of the benefit conferred by the title.13

Infringements on Aboriginal title

The SCC is clear in Tsilhqot’in that the rights conferred by Aboriginal title mean that governments and other parties seeking to use the land must obtain the title-holding group’s consent. If the Aboriginal group does not consent, the government may justify the proposed incursion on the land under s. 35 of the Constitution Act, 1982.14  The test for justifying infringement requires the Crown to demonstrate, inter alia, a compelling and substantial governmental objective. The SCC affirmed that economic development initiatives, including forestry, mining and hydroelectric developments, are capable of justifying infringement, provided the proposed incursion on the Aboriginal right is consistent with the Crown’s fiduciary duty towards Aboriginal people.15 The SCC emphasised that the focus must be on the economic value of the project relative to the detrimental effects on the Aboriginal rights holder and on whether or not the project would substantially deprive future generations of the benefit of the land.16

Remedies

Finally, the SCC held that the remedies available to an Aboriginal group vary over time on a spectrum. The Chief Justice wrote17:

“The practical result may be a spectrum of duties applicable over time in a particular case.  At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests.  As the claim strength increases, the required level of consultation and accommodation correspondingly increases.  Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim.  Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.  

Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward.  For example, 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.”

The SCC also formulated the following solution to limit the risks related to a potential declaration of Aboriginal title18:

“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

Implications for industry

This case may give First Nations additional incentive to claim Aboriginal title over significant territories and increase the pressure on the governments and industry proponents. That being said, Aboriginal title, as the most comprehensive of the Aboriginal rights, remains particularly difficult to prove. Moreover, First Nations do not have a veto over land development, particularly in cases where Aboriginal title is asserted but still unproven.

More than ever, industry proponents must be sensitive to Aboriginal law issues. They must make sure that the governments fulfil their duties to consult and accommodate the First Nations when appropriate.

Dan Collins