On June 26, 2014, the Supreme Court of Canada (SCC) released its highly anticipated decision in Tsilhqot'in Nation v. British Columbia. In this ground-breaking decision, Canada's highest court granted a declaration of Aboriginal title over a tract of Crown lands to the Tsilhqot'in Nation (Tsilhqot'in) of the west central interior of British Columbia.1 This is the first time in Canadian history that Aboriginal title has been definitively established and affirmed.
In allowing the appeal of the Tsilhqot'in from the decision of the British Columbia Court of Appeal (BCCA) in William v. British Columbia,2 the SCC has: (a) clarified the law as it pertains to the establishment of Aboriginal title and the nature of such title; (b) addressed how the establishment of Aboriginal title affects the Crown's duty to consult with Aboriginal peoples; and (c) clarified how provincial (and federal) legislation may apply to lands subject to Aboriginal title, and if necessary, infringements may be justified.
Tsilhqot'in is a decision with potential implications for all parties involved in resource development in British Columbia and across Canada: Aboriginal groups, governments and proponents. Tsilhqot'in does not alter the Crown's duty to consult and accommodate, which continues to apply wherever the Crown contemplates conduct that might adversely affect potential or existing Aboriginal rights or title. However, as a practical matter, provincial and federal governments will need to dedicate greater resources to assist them in determining the strength of Aboriginal claims to title when carrying out consultation. Transparency and sharing of information among Aboriginal groups, governments and proponents will be key to assessing the potential impacts of project activities to Aboriginal title and ensuring that the Crown's obligations to Aboriginal groups are met. Where a project may infringe on Aboriginal title, governments and proponents will be motivated to reach agreements with potentially impacted Aboriginal groups in order to secure certainty around the land base for the development of resource projects.
This litigation arose from Crown decisions dating back over 20 years. It concerns the Tsilhqot'in's claims for Aboriginal rights and title in two areas known as Tachelach'ed and the Trapline Territory (Claim Area), stemming from decisions of the Provincial Crown to grant a forest licence under the Forest Act3 in 1983 and a cutting permit in 1989 to Carrier Lumber Ltd. to log in the Trapline Territory. The Claim Area was confined to a sparsely populated area that constituted approximately five percent of the Tsilhqot'in's asserted traditional territory.
Our discussion of the trial decision and the BCCA decision is available here. In brief, at the trial level, Mr. Justice Vickers of the British Columbia Supreme Court (BCSC) was tasked with considering whether:
- the Tsilhqot'in held Aboriginal title and/or Aboriginal rights to all or part of the Claim Area;
- the provincial Forest Act applied to Aboriginal title lands; and
- the issuance of forest licences and other authorizations unjustifiably infringed the Tsilhqot'in's rights in the Claim Area.
The BCSC found that there was sufficient evidence of occupation by the Tsilhqot'in to support a claim for Aboriginal title in certain parts of the Claim Area, but refrained from granting a declaration of Aboriginal title as a matter of procedural fairness. Since the Plaintiff's pleadings made an "all or nothing claim" over the entire Claim Area, the BCSC held that it would be prejudicial to the Crown defendants to make a declaration of Aboriginal title in respect of only specific parts of the Claim Area. The BCSC concluded, however, that the Tsilhqot'in had Aboriginal rights in the area, and declared that the Crown had breached its duty to consult, and therefore the proposed forestry activities unjustifiably infringed Tsilhqot'in's Aboriginal rights.
The BCCA upheld the BCSC's decision and dismissed the Plaintiff's claims for Aboriginal title, finding that a "territorial claim" was not a viable foundation for a claim of Aboriginal title. In considering whether Aboriginal title was made out on the present facts, the BCCA applied a narrower test based on site-specific occupation of lands, requiring proof of intensive use of definite tracts of land within reasonably defined boundaries at the time of European sovereignty.
The BCCA concluded that there was insufficient evidence of a regular presence or intensive occupation of specific tracts of land in the Claim Area and declined to make a declaration of Aboriginal title in respect of the Claim Area or any specific sites within the Claim Area. The BCCA was of the view that the Tsilhqot'in's culture and traditions could still be fully respected without recognizing Aboriginal title over the Claim Area, and affirmed the Aboriginal rights of the Tsilhqot'in in the area.
What were the SCC's findings?
The SCC allowed the Tsilhqot'in's appeal and made a declaration of Aboriginal title over the Claim Area, finding that the BCSC had correctly applied the test for Aboriginal title and correctly found that, on the evidence, the Tsilhqot'in had established Aboriginal title over the Claim Area.4 The SCC noted that the procedural reasons that had originally precluded a declaration of title at the trial level were no longer relied on by the Province and were not at issue. The SCC further declared that the Province had breached its duty to consult with the Tsilhqot'in in respect of the issuance of logging licences under the Forest Act.
What is the test for establishing Aboriginal title?
In concluding that the test for Aboriginal title was met, the SCC clarified the test based on the principles it had set out in its 1997 decision, Delgamuukw v. British Columbia.5 In summary, Delgamuukw established that Aboriginal title to land is based on "occupation" of such lands prior to the assertion of European sovereignty. The Aboriginal claimant must successfully demonstrate that such occupation possesses three characteristics:
- occupation must be sufficient (at the time of European sovereignty);
- occupation must be continuous (where present occupation is relied upon); and
- occupation must be exclusive (historically).6
The SCC disagreed with the BCCA's views that occupation sufficient to ground Aboriginal title should be confined to specific settlement sites, and further disagreed that evidence of intensive use of a definite tract of land was required. Rather, the SCC held that Aboriginal title may extend to tracts of land that were regularly used for hunting, fishing, trapping or foraging and over which the Aboriginal group exercised effective control at the time of European sovereignty.7 The SCC held that the narrow approach put forth by the BCCA would be inconsistent with the reality of the semi-nomadic lifestyle of groups like the Tsilhqot'in.
The SCC held that an assessment of the sufficiency of occupation is a context-specific inquiry that requires a culturally sensitive approach. It must be approached from both the common law perspective (e.g. concepts of possession and control) and the Aboriginal perspective (including the laws, practices, customs and traditions of the Aboriginal group).8 The Aboriginal group must demonstrate that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes, and provide evidence of a "strong presence on or over the land claimed" indicating that the land was controlled by, or under the exclusive stewardship of the Aboriginal group.9
The SCC noted that continuity of occupation between present and pre-sovereignty occupation does not require proof of an unbroken chain of continuity between present and past practices, but rather that the present occupation must be rooted in pre-sovereignty times. This is determined on the facts.10 Exclusivity of occupation requires proof that the Aboriginal group had the "intention and capacity to retain exclusive control" over the lands, and this must also be approached from the common law and Aboriginal perspective.11
What rights are conferred by Aboriginal title?
The SCC stated that "Aboriginal title is what it is — the unique product of the historic relationship between the Crown and the Aboriginal group in question."12 Aboriginal title is a burden on the underlying title asserted by the Crown at sovereignty, giving rise to a fiduciary duty on the part of the Crown.13 While other forms of property ownership (e.g. fee simple) may assist in understanding aspects of Aboriginal title, they do not dictate precisely the nature of Aboriginal title.
The SCC held that Aboriginal title is a beneficial interest in the land, and confers on the Aboriginal group holding it rights that are similar to those associated with fee simple ownership: rights to determine how the land is used, enjoyment and occupancy, possession, the right to the economic benefit of such uses, and the right to pro-actively manage the land.14 However, there are also limits on such protected uses of Aboriginal title lands. As a result of the collective nature of Aboriginal title, use of the land must be consistent with the nature of the group's attachment to the land and lands must not be encumbered in ways that would deprive future generations of the Aboriginal group from enjoying the benefit of the land. Further, Aboriginal title lands cannot be alienated except to the Crown, which maintains underlying title to the land.15
How is the Crown's duty to consult affected by a finding of Aboriginal title?
The SCC distinguished between the obligations of the Crown towards Aboriginal groups before and after Aboriginal title has been established. Prior to the establishment of Aboriginal title, the well-known principles of consultation and accommodation of Aboriginal interests set down by the SCC in Haida Nation continue to apply. Where the Crown has real or constructive knowledge of the potential existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown must consult with the Aboriginal group, and where appropriate, accommodate the Aboriginal group.16 Since Aboriginal title is the strongest form of right, a strong claim of Aboriginal title may attract more stringent duties on the part of the Crown.17
However, once Aboriginal title has been proven, the SCC held that given the exclusive rights conferred to an Aboriginal group by Aboriginal title, "governments and others seeking to use the land must obtain the consent of the Aboriginal title holders" in order to proceed with development. If the Aboriginal group does not consent, the government's only recourse is to establish that the proposed incursion on the land is justified under section 35 of the Constitution Act, 1982, on the basis of the broader public good.18 In order to do so, the Crown must demonstrate that:
- it discharged its procedural duty to consult and accommodate;
- its actions were backed by a compelling and substantial objective; and
- the governmental action is consistent with the Crown's fiduciary obligation to the Aboriginal group.19
The SCC adopted the observations of Lamer C.J. in Delgamuukw regarding the types of compelling and substantive legislative objectives that might justify the infringement of Aboriginal title, namely: "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims..." 20The SCC noted that justification must be considered from both the Aboriginal perspective as well as the broader public perspective, consistent with the goal of reconciliation.21
What are the Crown's obligations regarding in-stream decisions when Aboriginal title is proven?
Resource development projects are routinely faced with asserted but unproven Aboriginal title claims. The SCC noted that as a practical matter, as the strength of claim increases, the required level of consultation and accommodation will correspondingly increase. Furthermore, the SCC noted that:
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.22
The SCC commented that governments and individuals proposing to use or exploit land can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.23
Can the Province infringe Aboriginal rights and title?
The SCC acknowledged that up to this point, the law had been unclear regarding whether a valid provincial law could ever justifiably infringe an Aboriginal right, or whether such justification was reserved for the federal government due to its constitutional jurisdiction.24 The SCC noted inconsistencies between earlier judgments and the fact that this issue had never been explicitly resolved.25 In Tsilhqot'in, however, the SCC has now provided a clear test to be applied to all government action (both federal and provincial) that may infringe Aboriginal rights or title:
- The SCC confirmed that provincial legislation of general application (such as regulation of resource development and other land use) continues to apply to land held under Aboriginal title, up to the point of infringement. For example, the regulation of forestry is in "pith and substance" a provincial matter, consistent with the constitutional division of powers.26 The SCC held that "Provincial laws of general application should continue to apply unless they are unreasonable, impose a hardship or deny the title holders their preferred means of exercising their rights, and such restrictions cannot be justified pursuant to" the Sparrow justification framework. This results in "a balance that preserves the Aboriginal right while permitting effective regulation" by the Province, as required by section 35.27
- The SCC further confirmed that while neither level of government may legislate in a way that results in a "meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown's fiduciary duty owed to the Aboriginal group," 28 both levels of government may rely on the section 35 justification and infringement framework (as set out by the SCC in Sparrow) to preserve the constitutionality of such action.
This decision represents an important step in the development of Aboriginal rights litigation in Canada. While the decision is a significant victory for Aboriginal groups, it does not fundamentally alter the law in Canada. Since the 1973 decision of the SCC in Calder, the law has recognized the possibility of Aboriginal title. It has long been a question of when, not if, an Aboriginal group would be successful in proving Aboriginal title.
It is important to note that there remains a high threshold to meet the test to establish Aboriginal title. Moreover, once Aboriginal title is established, it does not create a blanket prohibition on the government from using the land, provided that the government can justify the incursion. The SCC's adoption of Lamer C.J.'s observations in Delgamuukw regarding the types of uses that may be justified should be a positive sign for industry proponents.
From a practical perspective, proponents of resource projects can expect an increased focus by governments on the strength of an Aboriginal claim to title as part of the consultation process. For projects on lands subject to a strong case for Aboriginal title, governments are likely to seek to further insulate their decisions by carrying out more extensive consultation and accommodation discussions with Aboriginal groups. There will almost certainly be increased pressure on both governments and proponents to reach agreements on resource projects that may infringe on Aboriginal title. Where an agreement cannot be reached, proponents can expect governments to engage in a much more deliberate balancing of the public policy rationale for pursuing resource development.
While questions remain, this decision provides additional clarity in a critical area of law. It affirms the scope of provincial jurisdiction and resolves a long-standing question about the circumstances in which government can justifiably infringe Aboriginal title. Finally, the decision provides further guidance to government, Aboriginal groups and proponents at an important time for the development of natural resources in Canada.
1.2014 SCC 44 (Tsilhqot'in).
2. 2012 BCCA 285 (William).
3.2007 BCSC 1700.
4.One exception to the SCC's finding of Aboriginal title over the Claim Area was that a small portion of the area designated by the trial judge consisted of either privately owned or underwater lands – the Tsilhqot'in did not seek a declaration of title over these lands from the SCC
5. 3 S.C.R. 1010 (Delgamuukw).
6.Tsilhqot'in at para. 25.
7.Ibid. at para. 42.
8.Ibid. at paras. 34 – 37.
9.Ibid. at para. 38.
10.Ibid. at para. 45, 46.
11.Ibid. at paras. 47 – 49.
12.Ibid. at para. 72.
13.Ibid. at para. 75.
14.Ibid. at paras. 73.
15.Ibid. at paras. 15, 67, 74.
16.Ibid. at para. 78.
17. Ibid. at para. 79.
18.Ibid. at para. 76.
19. Ibid. at para. 77.
20.Ibid. at para. 83, citing Delgamuukw at para. 165 [emphasis added].
21.Ibid. at paras. 81, 82.
22.Ibid. at para. 92.
23.Ibid. at para. 97.
24.In this case, the SCC held that the Forest Act did not apply to the Tsilhqot'in Aboriginal title lands as a matter of statutory construction; the particular language of the Act restricted the Crown from issuing timber licences on anything other than "Crown land", and the SCC concluded that this did not extend to lands held under Aboriginal title. The SCC noted, however, that it remains open to the legislature to amend the Act to cover lands held under Aboriginal title, provided that it observes the applicable constitutional restraints (at para. 116). The SCC also noted that the Province had no compelling and substantial objective in issuing the cutting permits (at para. 126).
25.Ibid. at para. 138.
26.Ibid. at para. 128.
27.Ibid. at para. 151. The SCC noted the distinction between general provincial regulatory legislation that may impact the manner in which an Aboriginal right is exercised and which may incidentally affect matters under federal jurisdiction, and legislation that assigns Aboriginal property rights to third parties, such as the issuance of timber licences on Aboriginal title land. The SCC held that the latter would plainly amount to an infringement that must be justified (at para. 124).
28.Ibid. at para. 139.
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