Canada: What Does Aboriginal Title Mean For Mining In British Columbia?

Last Updated: July 9 2014
Article by Robin M. Junger and Brent Ryan (Student-at-law)

The recent decision of the Supreme Court of Canada in Tsilhqot'in v. BC 2014 SCC 44 has received a great deal of attention and has caused people to ask some important questions. Nowhere has this been more so than in the mining sector. This bulletin attempts to address some of those questions.

Does aboriginal title include mineral rights?

The law is not completely settled on this point.

In Delgamuukw v BC, [1997] 3 SCR 1010, then Chief Justice Lamer, when explaining that the content of aboriginal title is not restricted to practices, customs and traditions which are integral to distinctive aboriginal cultures, stated:

122    The [Indian Oil and Gas Act] presumes that the aboriginal interest in reserve land includes mineral rights, a point which this Court unanimously accepted with respect to the Indian Act in Apsassin v. Canada (Department of Indian Affairs & Northern Development), [1995] 4 S.C.R. 344 (S.C.C.). On the basis of Guerin, aboriginal title also encompass mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands.

This was cited in a decision by the Yukon Court of Appeal in Ross River Dena Council v Yukon, 2012 YKCA 14 (a duty to consult case, not a title case) where the Court stated:

32    ... Aboriginal title includes mineral rights (see Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (S.C.C.), at para. 122). In transferring mineral rights to quartz mining claim holders, the Crown engages in conduct that is inconsistent with the recognition of Aboriginal title.

While these statements may appear conclusive on their face, it is important to note that they are not necessarily settled law. In the case of paragraph 122 of Delgamuukw, this is the only mention of mineral rights and title, and it comes from a decision written by only three judges of the Court, concurred in by one other. Further, it is not the basis upon which the Court made its decision, and therefore is considered non-binding obiter dicta.

While one might argue that obiter dicta of the Supreme Court of Canada can and should be given considerable weight, it is equally important to note that in this developing area of law, brief comments made in passing by a court should not be determinative of the resulting legal order. A perfect example of this is the fact that in the Tsilhqot'in decision the Supreme Court of Canada completely divorced itself from its prior statements concerning the division of powers as between provincial and federal governments when it comes to aboriginal rights (including title). In Delgamuukw then Chief Justice Lamer had said this at paragraph 180:

It follows that aboriginal rights are part of the core of Indianness at the heart of s. 91(24).

But in Tsilhqot'in, the Court easily dismissed the above, saying at paragraph 135:

While no case has held that Aboriginal rights, such as Aboriginal title to land, fall at the core of the federal power under s. 91(24), this has been stated in obiter dicta.

Further, the Court in Tsilhqot'in did not address the issue of whether title includes ownership of mineral rights. But it did say at paragraph 73 that aboriginal title "confers ownership rights similar to those associated with fee simple" and in BC, fee simple land owners do not typically own any undersurface rights.

For all these reasons, it is far from inevitable that the courts will conclude that aboriginal title includes mineral rights in a case where that is a live matter for decision and where full arguments are presented. If and when such litigation does go forward, there are number of important questions and competing considerations that might need to be considered. For example:

  • If aboriginal title were to include mineral rights:
    • What would happen to existing mineral tenures held under the Mineral Tenure Act for areas where title is proven? Would the answer differ if those claims were filed before or after section 35 came into force in 1982? i.e. would the filing of those claims prior to 1982 have the effect of extinguishing aboriginal title or this aspect of it?
    • What would happen in respect of privately held mineral rights that were included as part of original Crown grants and are not claims under legislation? Given that those occurred prior to 1982, would they have the effect of extinguishing title or this aspect of it?
    • What about undersurface mineral rights charges in favour of the Department of Soldier Services. This is a federal government entity created in 1919 to provide land to soldiers returning from war. Would those have had the effect of extinguishing aboriginal title or parts of it?
    • How would any such aboriginal mineral ownership fit within the existing Mineral Tenure Act?
    • What authority might aboriginal groups have to create systems for allocation and exploitation of mineral rights in respect of minerals under title land, given that band powers under the Indian Act do not extend to such matters?
  • If any persons who hold claims or fee simple mineral interests were adversely affected by an aboriginal title finding that includes mineral rights, what remedies might they have against the Crown or other parties from whom they acquired the rights and invested in them?

And what would all the above mean in the context of pre-proof consultation that will continue to occur in the majority of the province that is subject to asserted but unproven aboriginal title?

These are important questions. They provide strong reasons why the issue of whether aboriginal title includes mineral ownership should not be considered to be resolved at this time simply on the basis of a single non-binding paragraph in the 1997 Delgamuukw decision, written by three judges and concurred in by one other.

Can BC continue to authorize mineral claims and regulate mining on title lands?

The short answer is yes. As the Court said:

[102]    As a general proposition, provincial governments have the power to regulate land use within the province. This applies to all lands, whether held by the Crown, by private owners, or by the holders of Aboriginal title. The foundation for this power lies in s. 92(13) of the Constitution Act, 1867, which gives the provinces the power to legislate with respect to property and civil rights in the province.

Thus, even if aboriginal title does include mineral rights, this does not mean that the province cannot continue to issue tenures and regulate mining on lands for which title has been proven. Instead, government would need aboriginal consent or show that such actions were "justified". The test for justification of infringement of title has been around for 17 years (since the Supreme Court of Canada's decision in Delgamuukw) and reflects common sense. It requires government to have a compelling societal objective and to consult with the relevant aboriginal group before infringing the title. It also requires the government to ensure that in authorizing infringements it does so to the minimum extent possible to achieve the societal goal, and that the public benefits are not outweighed by the adverse impacts on the aboriginal group. These are not unmanageable requirements.

Further, in both Delgamuukw and Tsilhqot'in, the Supreme Court stated expressly that mining is one of the compelling governmental objectives that could be used to justify infringement of aboriginal title. The Court also clearly stated in Tsilhqot'in that government can allocate to third parties the interests that First Nations own based on aboriginal title, provided consent is obtained or the justification test is met. Specifically, the Court said this at paragraph 127: 

Granting rights to third parties to harvest timber on Tsilhqot'in land is a serious infringement that will not lightly be justified. Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting, something that was not present in this case.

With respect to asserted, but unproven title (which is the case for the vast majority of BC), nothing has changed. Government's ability to authorize projects is still subject to the duty to consult and accommodate under the principles of the Supreme Court's 2004 decision in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. And doing so helps government later be able to justify those authorizations if the asserted title should become proven title in some specific areas.

Similarly, the comment at paragraph 92 of the Tsilhqot'in decision about the potential need to cancel projects after title is proven must be read very carefully. The court does not say projects may need to be canceled if title is later proven. It says that the projects would need to be canceled if they are "unjustifiably infringing" title. All this is to say that unjustified infringement would not be allowed to proceed in the face of title just because project permitting got started before title was ultimately proven there. But justified infringements can indeed proceed in such circumstances.

Finally, in any case where infringement is found, in order to justify it, compensation by government may be required. While the court in Tsilhqot'in was silent on this point, these principles are clearly discussed in the Delgamuukw decision. But it is important to note that the compensation portion of infringement of aboriginal title is not necessarily the value of the land that is being affected or the profits derived from the resource. Here is what the Court said in Delgamuukw:

169    ...The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated. Since the issue of damages was severed from the principal action, we received no submissions on the appropriate legal principles that would be relevant to determining the appropriate level of compensation of infringements of aboriginal title. In the circumstances, it is best that we leave those difficult questions to another day...

203    ... It must be emphasized, nonetheless, that fair compensation in the present context is not equated with the price of a fee simple. Rather, compensation must be viewed in terms of the right and in keeping with the honour of the Crown. Thus, generally speaking, compensation may be greater where the expropriation relates to a village area as opposed to a remotely visited area. I add that account must be taken of the interdependence of traditional uses to which the land was put.

It is possible that appropriate compensation could involve sharing a substantial portion of provincial revenues from such projects – something the province already does, through its resource revenue sharing policies.

Is consent required to move forward with projects on title lands?

No, it is not.

While much has been made of the language in the Tsilhqot'in decision, which encourages governments to obtain consent from aboriginal groups for projects, no one should fear these statements. Indeed proponents and governments already routinely take steps to try and obtain support from aboriginal groups for major projects where possible, and this is one of the potential outcomes of the process of consultation and accommodation that the law already requires. Consent is always preferable, but it is essential to note that nothing in this most recent decision requires it, and to the contrary the decision makes very clear that in the absence of consent, projects can proceed if they justifiably infringe title.

The subtle but important distinction is at the heart of a larger and challenging debate regarding the role of aboriginal consent in development of traditional lands. The UN Declaration on the Rights of Indigenous Peoples (a nonbinding declaration by the UN General Assembly) seeks to give full consent powers to aboriginal groups, and governments have discombobulated themselves simultaneously proclaiming support for this instrument while at the same time not wanting to accept it as giving aboriginal groups a veto. By contrast, the language used in ILO Convention 169 (an instrument which is legally binding at international law upon its signatories) has different language - language that is more consistent with that of the Supreme Court of Canada in Tsilhqot'in. It requires governments to consult "with the objective of achieving agreement or consent", but it does not preclude development where that cannot be achieved.

One should not be surprised that the Supreme Court of Canada has taken this more nuanced approach to "consent". Indeed, it is consistent with all of its prior statements encouraging negotiation but also noting that aboriginal groups do not have a veto, even if and where aboriginal title is proven. It is also consistent with the recent decision of the Federal Court in Hupacasath First Nation v. Canada (Minister of Foreign Affairs 2013 FC 900, where it stated that the UN Declaration is not part of the law of Canada. It is also consistent with the recent comments of the BC Supreme Court in Snuneymuxw First Nation v. Board of Education-School District #68, 2014 BCSC 1173.

Where does it go from here?

Allowing provincial laws to infringe aboriginal title but requiring them to be justified is the only true path to reconciliation. Any other approach would have resulted in a fragmented map of the province in which title lands become legal vacuums and, for all practical purposes, sterilized from economic development because no reasonable investor would ever invest in a legal vacuum. While these discussions involve sensitive political issues, the Supreme Court has been clear in setting out the legal path to reconciliation, and it would be a shame if the province does not take up the mantle that the Supreme Court of Canada has handed it.

To this end, and to address the many question that title raises, one option for the province would be to take up the court's repeated invitation to develop legislation dealing with such matters. For example, a new Aboriginal Title and Reconciliation Act could be created to do things such as:

  • address the immediate questions investors have, such as the effect of existing or future mineral or forest tenures on title lands (i.e. Will the province seek to support them and rely on the justification analysis if necessary?);
  • limit third party actions on title lands where and as appropriate;
  • spell out when and what compensation will be available to third parties affected by aboriginal title;
  • include procedural requirements and decision-making principles to ensure any infringements resulting from future statutory decisions are justified;
  • provide for First Nation compensation when justified title infringements occur (e.g. similar to the existing revenue sharing program for mining in BC); and
  • delegate powers where appropriate to aboriginal groups / persons to administer provincial laws applying on title lands.

While the province would most certainly want to consult aboriginal groups in developing such legislation, there would not be a requirement for consensus. And provided such legislation was reasonable, one would expect the courts to embrace it.

Whether the province adopts this course, or some other, remains to be seen.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Robin M. Junger
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.