On Thursday, the Supreme Court of Canada released its long-anticipated decision involving a claim by the Tsilhqot’in First Nation, holding that they have aboriginal title to a vast area of land in British Columbia equal to the size of the country of Guadeloupe, or close to half a million acres (the “Tsilhqot’in Land“).
In summary, the Supreme Court decision now gives First Nations across Canada exclusive control over decisions affecting land in which they have aboriginal title. It could not be more clear that they now have a veto power where aboriginal title has been proven. In respect of the Tsilhqot’in First Nation, previous land use decisions in which they did not consent are likely not binding anymore.
The decision also softens the requirement to establish aboriginal title, which may result in significantly more declarations of aboriginal title over vast areas of Canada that are currently the subject of claims.
With respect to industry’s use of land that is the subject of a claim by First Nations, the duty to consult and if warranted, accommodate, is still based on the decision in Haida Nation v. British Columbia, 2004 SCC 73 (see: “Clarity on the duty to consult and accommodate of industry and the Crown: the Haida decision“).
1. Background and Facts
The case originated as a forestry law dispute, arising from a number of administrative decisions rendered in British Columbia under the Forest Act, R.S.B.C. 1996, c. 157, pursuant to which the government granted timber companies harvesting rights (including, inter alia, the issuance of forest licences, road building permits and cutting permits) over the Tsilhqot’in Land.
The case is 24 years old and was started in 1990 by the Chief of the Xeni Gwet’in First Nation Government to prevent harvesting of the Tsilhqot’in Land. Seven years earlier, the government granted Carrier Lumber Ltd. a forest licence and cutting permit in the Tsilhqot’in Land. The Xeni Gwet’in attempted to negotiate the revocation of the permits to no avail. In 1989, they issued a declaration over the Tsilhqot’in Land governing certain land uses which specifically prohibited the use of the area for certain resource development (such as mining) and more importantly, commercial road building.
The provincial government proceeded to grant additional harvesting rights to private timber companies and corresponding permits to log and in 1994, three years into the litigation, the provincial government carved out 39% of the Tsilhqot’in Land and designated it a provincial park.
The Tsilhqot’in Nation is comprised of six bands under the Indian Act, R.S.C. 1985, c. I-5. who represent 3,000 status Indians (as that term is used in the Indian Act). The Tsilhqot’in have used the Tsilhqot’in Land for sustainance for hundreds of years, including for fishing, ceremonial events and the gathering of roots, berries and plants to prepare traditional mediicines essential for the maintenance of their way of life.
2. Lower Court Decisions
The trial at the lower level, Tsilhqot’in Nation v. BC, 2007 BCSC 1700, lasted five years, resulting in a finding that the Tsilhqot’in held certain aboriginal rights over the Tsilhqot’in Land but not aboriginal title. The forestry and land use approvals had unjustifiably infringed their aboriginal rights.
However, the trial judge went on to opine that there was evidence to prove aboriginal title to 40% of the Tsilhqot’in Land but that he could not make a declaration of aboriginal title because, as a matter of procedural law, it had not been pleaded as an alternative relief.
The parties each appealed the decision to the British Columbia Court of Appeal.
The Province of British Columbia appealed unsuccessfully in respect of the finding that the Tsilhqot’in had rights to the Tsilhqot’in Land and that the government had breached those rights.
The Tsilhqot’in First Nation unsuccessfully appealed the trial judge’s refusal to declare aboriginal title to the 40% of the Tsilhquot’in Land for which they had established title.
The Court of Appeal upheld the decision, confirming that aboriginal rights existed for some activities and had been infringed unjustifiably.
With respect to aboriginal title, it held the lower court was not barred from making a declaration because of defective pleadings. However, it did not agree that aboriginal title had been established. It held that aboriginal title required intensive presence at particular sites such as “buffalo jumps” or places where salmon nets were laid, and that the Tsilhqot’in First Nation had failed to prove intensive presence at any site.
According to the Court of Appeal, recognition of aboriginal rights gave the Tsilhqot’in First Nation enough protection of their traditional culture and it was not necessary to grant a declaration of aboriginal title which it described as “expansive.” The decision was a “compromise” that would not interfere with the sovereignty of the Crown or the well-being of other Canadians.
The parties appealed the Court of Appeal decision to the Supreme Court of Canada on the issue of aboriginal title over the Tsilhqot’in Land.
3. Supreme Court of Canada Decision
In a unanimous decision, Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, the Supreme Court of Canada allowed the appeal by the Tsilhqot’in First Nation and held that it has aboriginal title to the Tsilhqot’in Land.
Test for aboriginal title
The Supreme Court of Canada found that the lower court judge had correctly found that the Tsilhqot’in had established aboriginal title to some of the claimed area. The Court rejected the restrictive approach to aboriginal title set by the Court of Appeal, holding instead that title flows from “sufficient occupation” namely, sufficient and continuous use of the land, together with exclusive occupation. In making that determination, courts will be required to look to First Nations culture and practices, with a view to comparing them with what is required in common law to establish title based on occupation. Moreover, with respect to occupation of land, the legal analysis is no longer limited to specific sites of settlement but now extends to land regularly used for hunting, fishing, gathering or for exploitation of natural resources over which the First Nation exercised control at the time of the assertion of European sovereignty in respect of the land in question.
In this case, the lower court had found that there was evidence that parts of the Tsilhqot’in Land were regularly used by the Tsilhqot’in, supporting a finding of “sufficient occupation”. Exclusivity of land use in this case was proven by the fact that 200 years ago, the Tsilhqot’in repelled others from their land and demanded permission from outsiders who wished to pass over it. Continuity was established by proof of the fact that up to 1999, the land was occupied by the Tsilhqot’in.
What rights flow from aboriginal title
The Supreme Court of Canada elaborated on what rights flow from a finding of aboriginal title.
The rights confer on the First Nation, in this case the Tsilhqut’in First Nation, the exclusive right to decide how the land is used and the right to benefit from the use of the land. In other words, to “use it, enjoy it and profit from it.” These rights are subject only to the restriction that the land uses must be collective and for the enjoyment of future generations.
Government or industry use of aboriginal titled land
Governments and third parties seeking to use the land must now obtain the consent of the First Nations title holders. If they do not consent, the government may take action forcing the proposed land use provided it is justified under §35 of the Constitution Act, 1982.
To justify overriding the First Nation’s decisions on aboriginal titled land, the government must show that: (1) it discharged its procedural duty to consult and accommodate with the First Nation, (2) it has a compelling and substantial objective; and (3) the governmental action is consistent with the Crown’s fiduciary obligation. This latter requirement means that the government decision must respect the aboriginal nature of the land and its collectivist underpinnings. Land uses that would substantially deprive future generations of the land are not justified by the government, although the First Nation could in theory, use the land in such a way. There is, in effect, no underlying stewardship role of the Crown in respect of aboriginal titled land to supervise that its use by First Nations protects future generations, and in that sense, aboriginal titled land is akin to trust property.
Where aboriginal title is claimed but not yet established, the requirements are different. Where the Crown has real or constructive knowledge of the potential or actual existence of aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult and, if appropriate, accommodate the aboriginal right. The duty to consult must be discharged prior to carrying out the action that could adversely affect the right. The obligations in respect of consultation and if warranted, accommodation remain based wholly on the Haida decision (summarized here). With respect to the obligations on industry, they remain as articulated in the Haida decision, at the link above.
Period in abeyance
During the period of time before aboriginal title is established, the Supreme Court of Canada held that the lands are not unregulated but rather remain subject to land uses permitted by legislation, however the obligations in respect of proposed land uses over land that is the subject of a claim continue to be governed by Haida, above.
There is a problem with the decision in respect of the period in abeyance because, according to the Supreme Court of Canada, a Band’s title is strengthened by the assertion of control over the land with continuity. In the Tsilhqut’in case, continuity meant up to 1999, nine years after the claim was filed in the Supreme Court.
Asserting control can be proven by, inter alia, expelling others from the land and demanding that users of, and apparent trespassers upon, the land seek consent for using the land in any capacity. If bands do not take steps to protect the claim and seek payment from land use profits, and the title claim is diminished or lost as a result, they could be sued for failing to take all reasonable steps to protect the interests of the Band members and to protect the claim, in the same way trustees are exposed in respect of trusts.
Every Band asserting title across the country may now be motivated to assert land use control or they risk watering down a title claim, and every Band that does so may be the subject of an injunction preventing them from doing so, or even prosecuted.
In the result, the Supreme Court of Canada allowed the appeal by the Tsilhqot’in First Nation, granting a declaration of aboriginal title over the Tsilhqot’in Land and held that the province breached its duty to consult in respect of the Tsilhqot’in Land by the issuance of the Forest Act approvals.