Canada: Assessing The Implications Of The Tsilhqot’in Decision On Resource Development Projects In Canada

As discussed in our earlier blog posting, the Supreme Court of Canada (SCC) recently released its decision in Tsilhqot'in Nation v British Columbia (2014 SCC 44), a decision which granted a declaration of title over a tract of Crown lands located in interior British Columbia (BC) to the Tsilhqot'in Nation (Tsilhqot'in). As Aboriginal groups celebrate the SCC decision, parties involved in resource development across Canada are no doubt dissecting the decision to assess the potential implications of the decision for their projects.

The effects of the Tsilhqot'in decision will be felt most by projects in parts of Canada where Aboriginal land claims are unsettled. Since the majority of Aboriginal groups in BC have not yet signed treaties, there has been uncertainty around land and resource use.  Whether a project involves a pipeline, shale gas development, LNG or mining, if the project has the potential to infringe on Aboriginal rights or 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 these projects.  It is important to note that the Crown's duty to consult and accommodate continues to apply where there are asserted, but still unproven Aboriginal claims. This means that proponents should continue with established best practices to ensure that meaningful consultation is carried out, including:

  • engaging with Aboriginal groups early on to assess (with government assistance) the extent to which Aboriginal rights and title may be potentially impacted by project activities and to ensure that community concerns are addressed;
  • dedicating adequate resources to relationship building and community engagement;
  • working closely with government officials to ensure that the Crown is meeting its obligations to Aboriginal groups; and
  • sharing project information with stakeholders in an open and transparent way to facilitate decision making throughout the project development process.

In a nutshell, the SCC unanimously found that the Tsilhqot'in had established Aboriginal title over an area claimed by the Tsilhqot'in. In concluding that the test for Aboriginal title had been met, the SCC clarified the test that it first espoused in the 1997 case of Delgamuukw v. British Columbia. In order to establish title, the Aboriginal group must show that its occupation of the lands is (i) sufficient (at the time of European sovereignty), (ii) continuous (where present occupation is relied upon), and (iii) exclusive (historically).  In describing Aboriginal title, the SCC held that Aboriginal title constitutes a beneficial interest in land which confers on the Aboriginal group holding it rights that are similar to those associated with fee simple ownership. However, the use of the land must be consistent with the nature of the Aboriginal group's attachment to the land and such land cannot be alienated other than to the Crown, which maintains underlying title to the land.

Once title has been established, the SCC held that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders in order to proceed with development. If consent cannot be obtained, the government must justify the proposed incursion on the land under section 35 of the Constitution Act, 1982 and on the basis of the broader public good.  In order to justify this, 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
  • government action is consistent with the Crown's fiduciary obligation to the Aboriginal group.

In its decision, the SCC also clarified whether a valid provincial law could ever justifiably infringe an Aboriginal right, or whether such justification was reserved for federal government due to its constitutional jurisdiction over Aboriginal peoples. The SCC has now 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 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 framework set out in R. v. Sparrow. The SCC also confirmed that both provincial and federal levels of government may rely on the section 35 justification and the Sparrow infringement framework to preserve the constitutionality of legislation that results in the meaningful diminution of Aboriginal or treaty rights.

Tsilhqot'in is a significant decision because it provides greater clarity around the for Aboriginal title and affirms the scope of provincial jurisdiction, however it does not fundamentally alter the law in Canada. The possibility of Aboriginal title goes as far back as 1973, when the SCC recognized it in Calder v. Attorney-General of British Columbia. It is important to remember that there is a high threshold to prove Aboriginal title, a task which requires extensive time and resources. Practically speaking, one of the consequences of Tsilhqot'in is that 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 because a strong claim of Aboriginal title may attract more stringent duties on the party of the Crown. 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 fiduciary obligations to Aboriginal groups are met.

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