On June 26, 2014, the Supreme Court of Canada (SCC) granted the
appeal of the Tsilhqot'in Nation, confirming their Aboriginal
title over tracts of Crown land in British Columbia. Until this
landmark decision, previous claims of Aboriginal title had failed
to meet the stringent test set out in the SCC's 1997 decision
in Delgamuukw for Aboriginal title to lands: the
Aboriginal claimant must demonstrate that their occupation of the
lands prior to sovereignty was sufficient, continuous and
exclusive. By demonstrating that the Tsilhqot'in
Nation's semi-nomadic ancestors had hunted, fished and gathered
on the lands prior to sovereignty to the exclusion of others and
that the Tsilhqot'in Nation continues to use the lands today,
the Tsilhqot'in Nation had their right to control such
lands assured through a declaration of Aboriginal title.
The decision confirms the Crown's obligation to consult and
accommodate Aboriginal interests on such lands and goes further to
explain that any development on Aboriginal title lands would be
subject to the consent of the Aboriginal title holder. Absent
such consent, the Crown can only infringe proven Aboriginal title
by establishing such use is justified on the basis of the broader
public good under Section 35 of the Constitution Act,
1982. The Crown must establish that the infringing use serves
a compelling and substantial public interest and is consistent with
the Crown's fiduciary duty to the Aboriginal title holder.
The SCC called for a culturally sensitive approach to assessing
title, recognizing the intention and capacity of the
Tsilhqot'in Nation to control the area. By confirming a
territorial use-based approach to analyzing Aboriginal title
(i.e. rather than relying on proven use at specific
sites), this decision provides important guidance to governments
and development proponents:
"...the court must be careful not to lose or distort the
Aboriginal perspective by forcing ancestral practices into the
square boxes of common law concepts, thus frustrating the goal of
faithfully translating pre-sovereignty Aboriginal interests into
equivalent modern legal rights."
Concerns over wide-spread development restrictions resulting
from this decision are likely premature. On the issue of what
public benefit objectives could justify infringement on Aboriginal
title, the SCC confirmed its decision in Delgamuukw that
the development of agriculture, forestry, mining, hydroelectric
power and infrastructure could be compelling and substantial, but
would have to be considered on a case-by-case basis. In this case,
the enactment and application of British Columbia's forestry
management and harvesting regime to the Aboriginal title lands of
the Tsilhqot'in Nation failed to meet this test. The findings
of the lower court were upheld as to the limited public benefit
(economic or ecological) of the forestry regime and it was
determined that undue hardship and denial of rights of the
Tsilhqot'in Nation would result.
What perhaps should be given more attention is the assertion by
the SCC that the Aboriginal title holder and any government
authorizing development on the lands must ensure that such
development does not deprive future Aboriginal generations of the
control and benefit of the lands. We can expect that the exhaustion
of particular resources and the footprint of proposed developments
will be given significant scrutiny.
After 20 years in the courts, the success of the Tsilhqot'in
Nation in this case has ushered in another important phase of
Aboriginal rights recognition in Canada and provides important
guidance on how the concepts of sufficiency, continuity and
exclusivity will be applied to Aboriginal title claims across
Canada. Resource development in areas where Aboriginal title
remains an issue (predominantly British Columbia and Eastern Canada
but also parts of Ontario, Quebec and the North) will require
enhanced Aboriginal engagement, clear public benefit and protection
of future Aboriginal use.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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