Canada: Standing In The Shadows Of Delgamuukw: Uses Of Aboriginal Title Land Under The Tsilhqot'in Decision

In last June's controversial Supreme Court of Canada decision in Tsilhqot'in Nation v. British Columbia, the court made a declaration of Aboriginal title, but did not provide much guidance with respect to how the Tsilhqot'in could use its Aboriginal title lands. In this regard, the court did little more than state that a First Nation could not substantially deprive future generations of the benefit of those lands. The court's concern with future generations relates to the collective nature of 'Aboriginal title' rights.

Similarly, the concern with future generations of Aboriginal title holders also manifests itself in the context of the Crown's ability to "justify" an infringement of Aboriginal title. Before the Crown can permit a project or pass laws in relation to Aboriginal title lands, the Crown is first obliged to satisfy a three-part justification test. The third branch of this test requires the Crown to ensure that any infringement of Aboriginal title is consistent with the Crown's fiduciary obligations to the holder of the Aboriginal title. This requires the Crown to act in a manner that recognizes the collective nature of Aboriginal title. So, just as current generations of an Aboriginal title holder cannot use its Aboriginal title lands in a manner that would substantially deprive future generations of the benefits of the land, neither can the Crown.

In Tsilhqot'in, the court does not do much to clarify the uses of Aboriginal title lands that are reconcilable with the ability of succeeding generations to benefit from Aboriginal title lands and is largely content to say that this is an issue that the law would address on a case-by-case basis as needed.

Earlier comments of the court from its 1997 decision in Delgamuukw v. British Columbia shed a little more light on the matter. In that ruling, the court explained that while holders of Aboriginal title could use their lands for a variety of non-traditional, modern purposes, any use of the land that is irreconcilable with the nature of the First Nation's original occupation of, and relationship to, the lands that gave rise to its Aboriginal title in the first place is not permissible. So, to use the court's example, if a First Nation established a claim to Aboriginal title through historical occupation of the lands for the purpose of hunting, then the First Nation may not use those lands for strip mining since this was probably irreconcilable with that First Nation's historic relationship to the lands.

When read in the context of Delgamuukw, the court's decision in Tsilhqot'in tells us that the holder of Aboriginal title cannot use, and the Crown cannot justify an infringement, of Aboriginal title lands that is irreconcilable with the nature of the First Nation's historic occupation of and relationship to those lands. Proposed uses of Aboriginal title lands that are irreconcilable with the nature of the First Nations' historic occupation of and relationship to the Aboriginal title lands is simply not permitted and there's nothing that the First Nation or the Crown can do about it.

Except for one thing. The court made clear in both Tsilhqot'in and Delgamuukw that the holder of Aboriginal title lands may alienate those lands to the Crown for valuable consideration and, thereby, convert Aboriginal title lands to non-Aboriginal title lands. This would allow uses of (formerly) Aboriginal title lands that were irreconcilable with the nature of the First Nations' historic occupation of and relationship to the lands. One might see this as an interesting exception given that the conversion of Aboriginal title lands to non-title lands would absolutely seem to come at the expense of future generations of the First Nation.

But this gets to what is probably the court's primary objective when it comes to the reconciliation of Aboriginal rights with Crown sovereignty: to promote settlement treaties. Without the ability of First Nations to lawfully surrender Aboriginal title rights to the Crown, there is probably not much likelihood of reconciling Aboriginal rights with Crown sovereignty.

Originally published in the September/October 2014 issue of BC Forest Professional magazine.

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