Aboriginal Title

First Court Declaration of Aboriginal Title in Canadian History

The Supreme Court of Canada recently released its decision in Tsilhqot’in Nation v. British Columbia.  This historical decision, although not impacting Canadian employment law directly, has potential implications for Canadian businesses.

Background

Unlike the rest of Canada, indigenous populations of British Columbia (with a few minor exceptions) did not enter treaties whereby the First Nations peoples ceded their claim to land in exchange for reservations and other promises. Consequently, many indigenous groups, including the Tsilhqot’in Nation in the Cariboo Chilcotin, have unresolved land claims. In 1983, the Province granted Carrier Lumber Ltd. a licence to cut trees in part of the Tsilhqot’in territory. Talks between the Tsilhqot’in and the government ensued, but eventually broke down.

In 2002, the matter proceeded to trial.  Former chief Roger William, on behalf of all the members of the Tsilhqot’in Nation, sought the following: (1) a declaration of aboriginal title on two specific pieces of land; (2) a declaration that his band has a right to hunt and trap on said land, and (3) a declaration that the forestry permits that allowed the BC government to log on the land infringed the Tsilhqot’in’s aboriginal rights and title.

The BC Supreme Court refused to make a declaration for title due to procedural issues. However, the court made a non-binding declaration that the Tsilhqot’in were entitled to a declaration of Aboriginal title on a portion of the area. In 2012, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established, but they might be able to prove title to specific sites within the area claimed. For the remainder of the claimed territory, the Tsilhqot’in were restricted to rights to hunt, trap, and harvest.

The Supreme Court of Canada has adopted the approach of the trial judge, confirming that the Tsilhqot’in established Aboriginal title to the claimed area.

Establishment of Aboriginal Title

The main issue in this case was what constitutes sufficient occupation for the purposes of establishing aboriginal title. The Court affirmed the need to ground occupation before European sovereignty. However, to establish aboriginal title, occupation must further be sufficient; continuous (if present occupation is relied on); and exclusive. These characteristics are not sufficient conditions, but are necessary inquiries that expound whether aboriginal title is established.

The Court concluded that, once established, Aboriginal title “confers ownership rights similar to those associated with fee simple”: an exclusive right to determine how the land will be used, and the right to the benefits from those uses. Uses must be consistent with the common ownership interest and the enjoyment of the land by future generations.

Justification for Infringement on Aboriginal Title Lands

The Court re-affirmed the test for infringement of demonstrated aboriginal title. Absent consent, the government is required to: (1) discharge its procedural duty to consult and accommodate; (2) demonstrate its actions were backed by a compelling and substantial objective; and (3) show that the governmental action is consistent with the Crown’s fiduciary obligation to the aboriginal group in question.

The Court outlined the expectations of the government before proof of title is established. Prior to title establishment, the Crown:

“…is required to consult in good faith with any and all aboriginal groups asserting rights or title to the land about proposed uses of land and, if appropriate,         accommodate the interests of such groups. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.”

Conclusion

The Tsilhqot’in decision constitutes an historic recognition of Aboriginal title, but the decision itself has not dramatically changed the law. The legal test remains a remnant of the collective history of common law title decisions such as Delgamuukw, Sparrow, Haida and others. As a result, it will continue to be very difficult, time consuming and expensive to establish and judicially execute title claims for the foreseeable future. Although the Tsilhqot’in decision sheds light on our understanding of the Province’s power to regulate activities on aboriginal title lands, the application of such regulatory powers in specific cases will doubtless involve further litigation.  

Question relating to the content in this article should be directed to Scott McCann, Partner.