On June 26, 2014, in a groundbreaking decision on Aboriginal
title, the Supreme Court of Canada (SCC) significantly elaborated
on the legal test for Aboriginal title in Canada – and
decided that where there is Aboriginal title to land, the
government must seek the consent of the title-holding Aboriginal
group to proceed with developments on that land.
In 1983, the BC Government issued logging licences under the BC
Forest Act to a private company. The Tsilhqoti'in
Nation asserted an Aboriginal title claim to land covered by those
licences. The SCC decided the Aboriginal title claim was
valid – and 30 years later, the licences were not. In the
course of its decision, the SCC significantly developed the law of
Aboriginal title in Canada:
Test. The test for Aboriginal title is based
on sufficient, continuous and exclusive occupation by a First
Nation prior to European sovereignty and does not bar nomadic and
semi-nomadic people from proving an Aboriginal title claim. A court
should emphasize integration of Canadian common law and Aboriginal
perspectives in applying this test.
Territorial Scope. The SCC confirmed that
Aboriginal title is not necessarily confined to specific settlement
sites, but may extend to tracts of land that Aboriginal peoples
regularly used prior to European sovereignty.
Duty to Consult. The SCC also confirmed that
where Aboriginal title is asserted, but not yet confirmed by court
declaration or by agreement, the Crown still owes the duty to
consult with the First Nations.
Control of Land. The SCC decided that once a
First Nation has established Aboriginal title, the title holders
have "the right to determine, subject to the inherent limit of
group title held for future generations, the uses to which land is
put and to enjoy its economic fruits" – in effect that
the government must seek consent of the title-holding Aboriginal
group to proceed with developments on that land. Governments
must also ensure that they apply or update any legislation,
regulations and policies that may affect that land so they
don't unjustifiably infringe the Aboriginal title.
Application. These principles apply equally to
Federal and Provincial government actions and lands.
The SCC's decision will likely have significant impact
First Nations. First Nations communities and
Aboriginal rights holders now have a better idea of what they must
prove to establish Aboriginal title in land – and what rights
they get if they do establish it.
Government. Provincial and Federal governments
have a clearer picture of how to assess an asserted Aboriginal
title claim, how to respond to it – and how to deal with a
Industry. Resource rights holders should
reassess their rights (such as licences, approvals, permits,
government leases and agreements) by considering whether they could
infringe on any Aboriginal rights, including Aboriginal title
– and whether they are valid today as they were
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