Canada: Aboriginal Law Update: The SCC Grants A Declaration Of Aboriginal Title And Rules That Provinces Can Justifiably Infringe Aboriginal Rights

In a landmark decision, the Supreme Court of Canada ("SCC") granted a declaration of Aboriginal title to over 1,750 square kilometres of land located in British Columbia to the Tsilhqot'in Nation. The SCC's decision in Tsilhqot'in Nation v. British Columbia is the first time a Canadian court has issued a declaration of Aboriginal title.


The Tsilhqot'in are a semi-nomadic group of six First Nation bands. For centuries, they have lived in a remote valley in British Columbia. In 1983, British Columbia granted Carrier Lumber Ltd. a forest license to cut trees in part of the territory at issue. The Xeni Gwet'in First Nations (one of the six bands) objected and sought a declaration prohibiting commercial logging on the land. This led to a claim for Aboriginal title on behalf of all Tsilhqot'in people.

Following a 339-day trial, the trial judge found that the Tsilhqot'in people were in principle entitled to a declaration of Aboriginal title but, for various procedural reasons, refused to make the declaration. The British Columbia Court of Appeal held that Aboriginal title had not been established, but left open the possibility that the Tsilhqot'in might be able to establish title over portions of the land in the future.

On further appeal, the SCC granted a declaration of Aboriginal title and further declared that British Columbia had breached its duty to consult with the Tsilhqot'in Nation through its land use planning and forestry authorizations. In doing so, the SCC clarified the legal test for the establishment of Aboriginal title, the rights conferred by Aboriginal title, and the Crown's obligations to consult with First Nations who make a claim of Aboriginal title.

The SCC also considered whether provinces have the constitutional authority to infringe Aboriginal title, and reversed previous case law by holding that provinces can infringe Aboriginal rights (including title) provided the infringement can be justified under s. 35 of the Constitution Act, 1982.

Establishment of Aboriginal Title

The bar for establishing Aboriginal title has been set reasonably high. To prove a claim for Aboriginal title, the First Nation asserting title must establish: (i) sufficient pre-sovereignty occupation; (ii) continuous occupation (if present occupation is relied on as proof of pre-sovereignty occupation); and (iii) exclusive historic occupation.

To establish pre-sovereignty occupation, the First Nation must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. The SCC explained that there "must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of" the First Nation claimant. Sufficient occupation may be established in a variety of ways, such as construction of dwellings, cultivation of fields, and regular use of tracts of land for hunting, fishing or other resource exploitation.

If present occupation of the land is relied on as proof of pre-sovereignty occupation, then the First Nation must prove continuity between present and pre-sovereignty occupation. This requires the present occupation to be rooted in pre-sovereignty times.

Exclusive historic occupation relates to the First Nation's intention and capacity to control the land at the time of sovereignty. Exclusivity can be established by proving that others were excluded from the land, or that others were only allowed access to the land with the First Nation's permission.

Rights Conferred by Aboriginal Title

The SCC held that Aboriginal title constitutes a beneficial interest in the land. Aboriginal title holders have the right to decide how the land will be used, the right to enjoy and occupy the land, the right to proactively use and manage the land, and the right to the economic benefits of the land.

However, Aboriginal title is a collective title that is held not only for the present generation but for all succeeding generations. Accordingly, it cannot be alienated except to the Crown, and it cannot be encumbered, developed or misused in a way that would substantially deprive future generations of the benefit of the land.

Duty to Consult and Accommodate

The SCC confirmed its previous ruling in Haida Nation v. British Columbia (Minister of Forests) that the Crown has a procedural duty to consult and, where appropriate, accommodate First Nations' interests. The duty arises when the claim for Aboriginal title is made. If the Crown fails to discharge its duty to consult, then various remedies are available, including injunctive relief, damages, or an order that the Crown fulfill its duty to consult and/or accommodate.

Once a claim for Aboriginal title has been established, the Crown cannot use or develop the land without the consent of the First Nation title holders unless the Crown: (i) has discharged its duty to consult; and (ii) can justify the infringement of Aboriginal title under s. 35 of the Constitution Act, 1982.

In addition, once Aboriginal title has been established, it may be necessary for the Crown to reassess its prior conduct. If the Crown began a project without the consent of the Aboriginal title holders before Aboriginal title was established, then the Crown may be required to cancel the project if the continuation of the project could not be justified. Further, if legislation was validly enacted before Aboriginal title was established, it may be rendered inapplicable if it unjustifiably infringes Aboriginal title.

Justifiable Infringement Under s. 35 of the Constitution Act, 1982

Section 35 of the Constitution Act, 1982 recognized and affirmed existing Aboriginal and treaty rights, including Aboriginal title. In order to justify an infringement of Aboriginal title, the Crown must: (i) demonstrate a compelling and substantial governmental objective; and (ii) demonstrate that its actions are consistent with the fiduciary duty it owes to the Aboriginal title holders.

The SCC affirmed its earlier decision in Delgamuukw v. British Columbia that objectives that can, in principle, justify the infringement of Aboriginal title include the development of agriculture, forestry, mining and hydroelectric power, general economic development, protection of the environment or endangered species, the building of infrastructure, and the settlement of foreign populations to support these objectives.

Proof that the Crown's actions are consistent with the fiduciary duties it owes to Aboriginal title holders involves the consideration of a three-part test:

  • Rational connection: the infringement must be necessary to achieve the Crown's objective;
  • Minimal Impairment: the Crown must go no further than necessary to achieve its objective; and
  • Proportionality of impact: the benefits expected to flow from the objective must not be outweighed by the adverse effects on the Aboriginal interest.

Provinces can Justifiably Infringe Aboriginal Rights

The SCC held that provincial governments (and not only the federal government) may seek to justify an infringement of Aboriginal rights including, but not limited to, Aboriginal title. In doing so, the SCC expressly overturned its 2006 decision of R. v. Morris, which had been interpreted as barring provincial governments from regulating the exercise of Aboriginal rights even if any infringements could be justified under s. 35 of the Constitution Act, 1982.


Once Aboriginal title has been established, the Aboriginal title holders have the right to decide how the land will be used and the right to benefit from economic development. Governments that seek to use Aboriginal title land must either obtain the consent of the Aboriginal title holders or justify any infringements under s. 35 of the Constitution Act, 1982.

The mere assertion of a claim to Aboriginal title raises significant implications for governments and project proponents. The SCC affirmed the existing regime from Haida concerning the Crown's duty to consult and, where appropriate, accommodate as soon as a claim of Aboriginal title has been made. The decision underscores the need for early Crown and proponent consultation with First Nations, and legal advice in relation to these matters.

In addition, the SCC's decision has the potential to:

  • open the door for more claims of Aboriginal title;
  • put some existing and prospective projects at risk in areas where Aboriginal title has or can be asserted;
  • shift the balance in some ongoing land claim negotiations in favour of First Nation claimant(s);
  • increase the length of time it will take for governments and proponents to negotiate projects with First Nations that have existing or potential Aboriginal title claims, with a corresponding increase in negotiation, development and settlement costs; and
  • cause governments to have clear and specified objectives for any legislation that has the potential to impact Aboriginal rights in order to pave the way for justifying any infringements.

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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