Canada: Aboriginal Title, First Nations

Last Updated: December 4 2014
Article by René Morin and Marc-Alexandre Hudon

Most Read Contributor in Canada, September 2018

On June 26, 2014, the Supreme Court of Canada handed down a major ruling on aboriginal title in its Nation Tsilhqot'in v. British Columbia decision.1

The Court recognized that the nomadic and semi-nomadic people of the Tsilhqot'in Nation in British Columbia hold the exclusive occupancy rights to a territory of more than 1,500 sq. km. in the province.

The Tsilhqot'in decision marks a turning point from 1990s jurisprudence on ancestral rights and aboriginal title. In the Van der Peet 2 case (1996), the Court established the requisite conditions for proving ancestral rights. This decision was followed in 1997 by the Delgamuukw 3 case, which established the analytical framework for proving aboriginal title without concluding, however, that such a right existed in the case under review. The Tsilhqot'in decision is thus the Supreme Court's first decision confirming the existence of such a title based on the evidence presented.

Highlights

The Court confirmed and applied the conditions for establishing aboriginal title that it had set out earlier in Delgamuukw (which in turn built on the earlier test for aboriginal rights established in Van Der Peet). These conditions may be summarized as follows:

a)    the First Nations group must establish that the occupation of its territory prior to sovereignty was sufficient to ground aboriginal title;

b)    where present occupation is relied on as proof of occupation prior to Crown sovereignty, the First Nations group must establish continuity between present and pre-sovereignty occupation; and

c)    the First Nations group must establish that it had exclusive occupation of the land at the time of sovereignty, evidenced by its intention and capacity to retain exclusive control over the lands.

In Tsilhqot'in, the Court focussed largely on the first condition, sufficiency of occupation, determing that regular and intensive use of the territory akin to settlement was not required in order to satisfy the test.  In this respect, Tsilhqot'in clarified previous case law that suggested it may be more difficult for nomadic or semi-nomadic First Nations groups to establish aboriginal title.

Impact in Quebec

There are currently 11 Nations in Quebec (Abenaki, Algonquin, Attikamek, Cree, Huron-Wendat, Innu, Malecite, Micmac, Mohawk, Naskapi and Inuit), most of which were originally nomadic. [Métis individuals must prove that they constitute one or more aboriginal Nations in Quebec.] Quebec's aboriginal population totals 70,000 people, or slightly less than 1% of the province's total population.

The Court's findings in Tsilhqot'in regarding Aboriginal title do not have any legal application to areas over which Aboriginal title has been extinguished, such as in cases where Aboriginal lands were surrendered to the Crown by historical treaty or through modern land claim agreements.

The Quebec situation is similar to that in British Columbia, in which only a portion of the province is covered by treaties. In Quebec, only the Cree, Inuit and Naskapi have signed treaties or agreements that are generally considered to have extinguished their aboriginal title and ancestral rights, if such title and rights previously existed. (That is not to say, however, that such treaties are necessarily immune from challenges by Aboriginal groups that may dispute the validity of extinguishment of title, or the applicability of a particular treaty to them.)

Prior to the Tsilhqot'in decision, it was anticipated that other non-treaty nomadic groups in Quebec would be able to establish the existence of aboriginal rights (such as hunting fishing and trapping), but that due to their nomadic lifestyles, they would likely not be able to meet the test for aboriginal title. The Tsilhqot'in test for establishing aboriginal title suggests, however, that it is possible for nomadic groups to prove aboriginal title if they are able to establish that despite their nomadic lifestyles, they regularly used the lands and exhibited the intention and capacity to retain exclusive control over such lands.

Nevertheless, aboriginal title cannot be inferred and must be established by means of historical evidence meeting the conditions set out by the Court.

We must also take into account the specific historical context of First Nations groups in Quebec, particularly the impact of the French (and then English) presence within the territory, particularly as this relates to the existence and survival of aboriginal title and ancestral rights. In addition, we must take into account the legal context associated with the conclusion of the James Bay and Northern Quebec Agreement covering the northern half of Quebec. Each of these factors may affect the ability of First Nations groups in Quebec to demonstrate that aboriginal title rights survive and have not been extinguished.

Footnotes

1. Tsilhqot'in Nation v. British Columbia, 2014 CSC 44, [Tsilhqot'in].

2. R. v. Van der Peet, [1996] 2 RCS 507, [Van der Peet].

3. Delgamuukw v. British Columbia, [1997] 3 RCS 1010, [Delgamuukw].

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