Canada: Tsilhqot'in Nation – An East Coast Perspective

On June 26, 2014, the Supreme Court of Canada released one of the most significant aboriginal law decisions since Marshall – Tsilhqot'in Nation v. British Columbia, 2014 SCC 44 (also known as the William decision). This decision could have considerable impact on aboriginal land title claims in areas of Atlantic Canada which are not covered by a modern treaty. This includes most of Atlantic Canada (except Labrador).

Background

Over twenty years ago, the province of British Columbia approved a private company's plan to log a mountainous and sparsely populated area of central British Columbia which fell within the Tsilhqot'in Nation's traditionally occupied territories. As a consequence, the group brought a civil action against the governments of Canada and the province of British Columbia, and claimed aboriginal title to a large part of that region. The claim was opposed by the governments, but there were no competing indigenous or non-indigenous claims. After a trial that lasted over 300 days, the judge at first instance expressed the opinion that the claimant group had established a claim to aboriginal title in excess of 200,000 hectares of that land. His decision was appealed, and the British Columbia Court of Appeal overturned the trial decision. The Supreme Court of Canada, in a unanimous decision, agreed with the trial judge, and issued a declaration of title.

Issues

There were three main issues in the case:

  • What did the Tsilhqot'in, a very small semi-nomadic aboriginal group, have to prove in order to establish aboriginal title to the lands in issue?
  • Did the province breach its duty to consult the aboriginal group before granting approval?
  • Can a province regulate the use of aboriginal title land under forestry legislation?

Proving Aboriginal Title

The court relied on its 1997 decision in Delgamuukw and confirmed that, in order to establish aboriginal title to an area of land, an aboriginal group must satisfy a three-part historic occupation test; that is, it must establish that its ancestors occupied the lands: (i) "sufficiently"; (ii) "continuously" (where present occupation is relied on as part of the proof offered in relation to its historic occupation); and (iii) "exclusively", at the time the Europeans originally asserted sovereignty to the lands in issue. It emphasized that these factors need to be applied in an interrelated, culturally sensitive and flexible fashion.

The court also provided much needed clarity on the important question of whether a First Nations group can make a "territorial", as opposed to a "site specific" claim (the latter is sometimes called the "postage stamp" approach). It specifically rejected the Court of Appeal's suggestion that aboriginal title was confined to cases in which regular presence or intensive occupation of a particular tract of land at the relevant time had been proven. The judges held that a title claim could extend to territories that were "sufficiently" used for hunting, fishing, trapping and foraging prior to that date and that this test could, moreover, be satisfied by nomadic or semi-nomadic patterns of the occupation. In such cases, the facts do, however, have to demonstrate that the lands were regularly used by, and had been under the exclusive control of, the claimant group's ancestors.

The court pointed out that the trial judge had heard a great deal of historic evidence pertaining to the claimant group and the use of the lands in issue in 1846, which was the pertinent date for the purposes of the case. That evidence included the small population that the land could sustain, archeological evidence of specific sites, the geographic pattern and proximity of sites in the area, the restrictions the claimant group historically imposed on the use of the land on outsiders. Oral evidence was also given by aboriginal elders. Notably, the Supreme Court of Canada specifically rejected the province's argument that the claimant group's population was only 400 in 1846 – and that such a small group could not practically control over 1900 square kilometres of rugged terrain. It reasoned that the intensity and frequency of use required can vary from case to case depending on the size of the group and the kind of land involved. The court also acknowledged that the evidence was, by its nature, sometimes imprecise and was at times conflicting, but the trial judge made no error in assessing it.

The Nature and Scope of Aboriginal Title

The court reiterated that aboriginal title confers a special form of property interest in lands. It confirmed that title carries with it several collective rights, including:

  • The right to exclusive enjoyment and occupation of the land.
  • The right to determine how it is used and to enjoy its economic benefits.
  • The right to pro-actively manage it.

It did, however, also make it clear that aboriginal title imposes some significant restrictions on what aboriginal groups can do with the land. Specifically, it cannot be alienated except to the Crown, or encumbered or developed in ways that would prevent enjoyment and use by future generations.

Thus, this case makes it very clear that aboriginal title is very different from the ordinary common law notion of land title. It must also be noted that aboriginal title and other rights are constitutionally protected under s. 35 of the Constitution Act, 1982.

The Supreme Court of Canada also warned that governments, and others, who seek to develop or use lands which are subject to aboriginal title must obtain the consent of the aboriginal title holders. It also stressed the potentially serious consequences that failing to obtain such consent can have on both completed or pending projects:

...if the crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

Duty to Consult

The Supreme Court of Canada pointed out that the crown has a duty to consult in good faith with an aboriginal group about proposed land uses where the group has asserted, but has not yet established, aboriginal title to lands. It must also, where appropriate, accommodate its interests. The level of consultation and accommodation will vary with the strength of the claim.

It held that the province had not honoured its duty to consult or accommodate in this case.

Justification of Infringements

The court also confirms that, absent consent, any infringement of an established aboriginal title by the federal or provincial government, must be preceded by appropriate consultation with the aboriginal group and must be justified under s. 35 of the Constitution Act, 1982.

Application of Provincial Regulation

The court held that a province can still regulate the use of aboriginal titled land. For instance, generally applicable regulatory requirements pertaining to land use and the environment can still apply.

Implications for Atlantic Canada

This decision could have a significant impact on aboriginal claims in Atlantic Canada, and in particular, on businesses within the region:

  • Much of Atlantic Canada (except Newfoundland and Labrador) is or may be covered by historic aboriginal treaties which have been in existence since the 18th century. Those treaties likely do not establish aboriginal title to lands, but they may provide evidence of such title. This is suggested by a comment by the court in this case about the Royal Proclamation of 1763 which indicates that, in its view, aboriginal title was already in existence at the time that proclamation was issued.
  • Those historic treaties do not, in any event, specifically identify the areas over which aboriginal title exists so the historic occupation test still needs to be used to identify those areas. The relevant date for the application of that test in Atlantic Canada is also earlier (i.e. in the mid-1700s). This decision does not, therefore, remove all uncertainty with respect to such claims.
  • Historically aboriginal groups in Atlantic Canada have had some of the same characteristics as the Tsilhqot'in; they tend to be small and semi-nomadic.
  • This decision will likely provide impetus to aboriginal groups to pursue aboriginal title claims through negotiations, or litigation and will give them added confidence in making those claims. Given the extraordinary cost of this type of litigation, it will also likely put more pressure on the federal and provincial government to resolve aboriginal claims out of court through negotiations. It must also be noted that, even if a group cannot establish aboriginal title, it may be able to establish that it has other land-related rights by treaty or under the broader doctrine of aboriginal rights (e.g. hunting and fishing).
  • In Newfoundland and Labrador, both the Labrador Inuit and Labrador Innu have either negotiated or are in the process of negotiating comprehensive land claims agreements which provide for different levels of influence and rights in different designated areas. The Tsilhqot'in Nation decision should not affect the enforceability of finalized agreements of this nature or the legislation enacted to ratify them. However, the decision may prove to strengthen the basis for any outstanding Aboriginal land claims in the province, such as the NunatuKavut Community Council Inc. claim, which to date has not been finally accepted for negotiation by the federal or provincial governments.
  • In April 2013, the Government of Newfoundland and Labrador released its "Aboriginal Consultation Policy on Land and Resource Development Decisions" (the "Policy"). The Policy applies broadly to all "land and resource development decisions that have the potential to adversely impact asserted Aboriginal rights or asserted treaty rights". The Policy enforces structured discussions between government proponents and Aboriginal groups in a manner that promotes achieving a "a positive, sustainable, mutually beneficial outcome" and aligns with the duty to consult standard reiterated in the Tsilhqot'in Nation decision.
  • It reminds government, and others seeking to develop lands which is or even might be, subject to an aboriginal title claim of the onerous nature of the duty to obtain consent, or to consult and justify any infringement of aboriginal title.
  • This case may strengthen aboriginal title claims and, correspondingly, increase the level of consultation and accommodation required.
  • It makes it clear that assessing the potential for aboriginal claims should be an integral part of any commercial land transaction including, in particular, land development projects. Where there is possibility that such a claim may be made, early engagement with aboriginal groups is key. While private proponents do not have the legal duty to consult, they have to be part of the process. The negotiation of an impact benefit agreement with aboriginal groups may be required as part of the transaction.
  • Where aboriginal title is found to exist, but was not respected when a development was approved in the past, there is a real risk that the project could be cancelled or damages could be awarded if it unjustifiably infringed on title or a claim for damages may also be made during modern treaty negotiations.
  • While some may be alarmed at the Supreme Court of Canada's decisions, others may see it as a business opportunity (e.g. to engage in partnership or joint ventures with aboriginal groups).

More background on aboriginal law in Canada can be found in Stewart McKelvey's Doing Business in Atlantic Canada. Additional comment on the Tsilhqot'in case is also provided in the Stewart McKelvey's civil litigation blog, Bench Press.

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.

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

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Miller Titerle + Company LLP
Goodmans LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Miller Titerle + Company LLP
Goodmans LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions