Environmental, Indigenous and Natural Resources Blog

Introduction

On June 26, 2014, the Supreme Court of Canada (“SCC”) released its much anticipated decision on Aboriginal title in the Tsilhqot’in case and surprised many by granting the Tsilhqot’in Nation a declaration of Aboriginal title to approximately 200,000 hectares (2,000 km²) of land.

The Tsilhqot’in case is the first case decided by the SCC granting Aboriginal title to an Aboriginal group.  The case is of particular importance to resource-rich British Columbia where much of the provincially-owned land is subject to asserted, and often competing, claims to Aboriginal title and where many First Nations have not entered into treaties resolving their land claims with Canada.

This post will summarize the SCC’s ruling regarding the test for Aboriginal title, the nature of Aboriginal title, and the power of government to justifiably infringe on established Aboriginal title.  Future posts will address the applicability of provincial and federal laws to lands held under Aboriginal title.

Judicial History

For an overview of the decisions of lower courts, please see our previous Project Law Blog posts regarding the British Columbia Supreme Court decision and the British Columbia Court of Appeal decision.

Supreme Court of Canada Decision

The Test for Aboriginal Title

In Delgamuukw, the SCC stated that the test for Aboriginal title requires exclusive occupation and control of the land.  In Tsilhqot’in the significant debate was whether semi-nomadic Aboriginal groups could satisfy this test in claims over broad territories, or if exclusive occupation was limited to definite tracts of land or settlement sites occupied by Aboriginal groups at the time of Crown sovereignty.

The Court affirmed Delgamuukw, but provided clarification on how the test applies to semi-nomadic indigenous groups.

In short, “occupation” of the land must be “sufficient, continuous (where present occupation is relied on) and exclusive.”  Courts should compare Aboriginal culture and practices in a culturally sensitive way to the common law requirements necessary to establish possession over land.

When considering the Aboriginal group’s ability to satisfy the sufficient occupation standard, the Aboriginal group’s size, manner of life, material resources, technological abilities, and the character of the lands claimed must be considered.  Though the exercise is context-specific with respect to the manner of life of the people and the nature of the land, the Aboriginal group must ultimately show that they have historically acted in a way that would communicate to third parties that they held the land for their own purposes.

While the Court of Appeal required “intensive” use of the land to meet the sufficiency threshold, the Supreme Court of Canada ruled that a culturally sensitive approach found on the facts of the Tsilhqot’in case that the regular use of territories by semi-nomadic indigenous groups for hunting, fishing, trapping and foraging was sufficient to ground Aboriginal title.

 What Does Aboriginal Title Mean?

In Delgamuukw, the SCC held that Aboriginal title “encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes.”  Aboriginal title is not limited to traditional uses of the land; however the use and occupation of the land must be reconciled with the collective nature of the group’s interest in the land.

In Tsilhqot’in, the Court confirmed that Aboriginal title is a unique and beneficial interest in the land that cannot be equated to other forms of property ownership.  Aboriginal title confers ownership rights similar to fee simple, including the right of enjoyment and occupancy of the land and the right to:

• decide how the land will be used;
• possess the land;
• reap the economic benefits of the land; and
• pro-actively use and manage the land.

However, Aboriginal title is not absolute and must be held collectively for the present and future generations.  It cannot be alienated except to the Crown, nor encumbered in a way that would prevent future generations of the group from using and enjoying it.

Tsilhqot’in stipulates that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.  If consent cannot be obtained, then the government can still “justify” an incursion onto the land under section 35 of the Constitution Act, 1982 if the test for justification can be met.

            The Test for Justification of Infringement

Tsilhqot’in has not changed the law with respect to consultation and accommodation for asserted claims to Aboriginal title as established in previous cases such as Haida, but has articulated a test for determining when government can take action on lands over which Aboriginal title has been proven.

Where Aboriginal title is established rather than merely asserted, governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.  Absent consent from the Aboriginal title holders, a government that wishes to take action on Aboriginal title lands must show that:

• it discharged its procedural duty to consult and accommodate as articulated in Haida;
• its actions were in pursuit of a compelling and substantial objective; and
• the action is consistent with the Crown’s fiduciary obligation to the Aboriginal group.

The compelling and substantial objective is to be considered from both the Aboriginal perspective and the perspective of the broader public and must further the goal of reconciliation of Aboriginal interests with those of the broader interests of society.  The development of agriculture, forestry, mining, and hydroelectric power, as well as the economic development of the province, can be consistent with the goal of reconciliation and can, in principle, be “compelling and substantial objectives” capable of justifying an infringement of Aboriginal title.

If there is a compelling and substantial objective, then the government must also establish under section 35 that its actions are consistent with its fiduciary duty towards Aboriginal peoples.  To be consistent, the government must not act in a way that would substantially deprive future generations of the benefit of the land.  Further, in order to justify the infringement, the Court has created a proportionality test that requires the consideration of the following:

• whether the incursion is necessary to achieve the government’s goal (rational connection);
• that the government is not going further than necessary to achieve its goal (minimal impairment); and
• that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interests (proportionality of impact).

While this section 35 test has its roots in established Canadian constitutional jurisprudence, the test has the potential to be difficult to apply.

Unanswered Questions

While providing greater clarity in some cases, there are a number of remaining questions that the SCC’s decision did not address.  Some of the real practical concerns for government and industry going forward are:

• Whether consent has been obtained from the right person or group.  Government and industry will have to be sensitive and alive to traditional political structures and legal systems when seeking authorizations from Aboriginal groups.
• The significance of overlapping and competing claims to Aboriginal title over the same territory.
• The significance of internal disputes within Aboriginal groups with respect to land use planning and development, recognizing that Aboriginal title is held collectively for the benefit of present and future generations.

What Happens Now?

In most of British Columbia, claims for Aboriginal rights and title are still unresolved either through court declarations or under treaties.  In those areas of British Columbia, the consultation requirements under the Haida case remain applicable.  The depth of consultation required is dependent on: (1) the strength of the claim, and (2) the potential impact of proposed land use or project proposals.  The immediate effect of the Tsilhqot’in decision is that the strength of claims in many cases will likely increase, thereby increasing the depth of consultation required.  This will affect the consultation obligations of government, as well as the consultation efforts of project proponents.

As a result of the Tsilhqot’in decision, we may see many more First Nations bringing forward their court claims for declaration of Aboriginal title.  The case will also affect the positions of both First Nations and government at the treaty negotiation tables.

The Court has stated that once Aboriginal title is granted, development cannot proceed on that land absent consent or before establishing a justified intrusion under the Constitution Act, 1982.  Further, the Court has stated that it may be necessary for the Crown to reassess prior conduct in light of declaration of Aboriginal title and halt projects and suspend the applicability of legislation if consent was not first obtained from the Aboriginal title holder.  For proponents looking to develop resource projects in British Columbia, this decision means there are compelling reasons to continue the now well established practice of early engagement with Aboriginal groups and the negotiation of impact benefit agreements.

In a later bulletin we will address the findings of the Court that provincial laws of general application (forestry laws, environmental laws) will continue to apply to Aboriginal title lands, with certain limitations.