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.
Background
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.
Implications
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.