ALG note re Tsilhqot’in decision from Supreme Court of Canada

In an unprecedented, unanimous decision written by the Chief Justice, the Supreme Court of Canada unequivocally held that a First Nation, in this case the Tsilhqot’in Nation, successfully established Aboriginal title to its claimed area. In so doing, the decision provides a clear and substantive framework for establishing Aboriginal title, the rights Aboriginal title confers and the application of provincial laws of general application to land held under Aboriginal title – all within the backdrop of recognizing and requiring a culturally sensitive approach.

Historic and ground-breaking, this decision decisively recognizes that Aboriginal interests, needs and perspectives are a priority which can no longer be minimized, denied or ignored. They must be understood, respected and accommodated in a meaningful, thoughtful way.

Establishing Aboriginal Title

Characteristics of Aboriginal title flow from the special and historic relationship between the Crown and the Aboriginal group in question, making such title sui generis or unique, and which gives rise to the Crown’s fiduciary duty to Aboriginal people in general. Further, the doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation, 1763. Within this context, the Supreme Court rejected the Court of Appeal’s narrower test (the “small spots ” approach) for occupancy based on intense, regular use of defined tracts of land and accepted the trial judge’s broader approach ( a territorial approach) of regular and exclusive use of sites or territory within the claim area as well as to a small area outside that area. Specifically, the Supreme Court held that to establish Aboriginal title “occupation” must possess three characteristics: it must be sufficient, continuous (where present occupation is relied on) and exclusive.

Sufficiency is a context-specific inquiry and requires looking at both the Aboriginal perspective – that is, the Aboriginal group’s laws, practices, customs and traditions, and the common law perspective- the idea of possession and control of the lands. Both perspectives are of equal value. Therefore, Aboriginal title is not confined to specific village sites or farms. Regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of the particular case, evinces an intention to hold or possess land in a manner comparable to what would be required to establish title at common law.

In regards to continuity, the Court confirms that an unbroken chain of continuity between current occupation and occupation prior to contact is not required. However, when the claim is based on present occupation, the occupation must be rooted in pre-sovereignty times.

Exclusivity requires an intention and capacity to control the land. This may be evidenced by proof of exclusion of others to the land, permission to grant access, treaties between groups, and even lack of challenges to occupancy. This requirement must also be approached from both the common law and Aboriginal perspectives and must take into account the context and characteristics of the Aboriginal society.

These three concepts are to provide useful lenses through which to view the question of Aboriginal title. They are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established. Notably, the Supreme Court cautioned future courts not to lose sight of or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts as this would frustrate the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.

What does Aboriginal Title Confer?

Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it: simply put, the right to decide how land will be used. In particular, the ability to occupy, possess, enjoy and profit from its economic benefits and to proactively use and manage the land. Even permanent changes are possible as long as present and proposed uses enable succeeding generations to benefit from the land.

Aboriginal title also requires the consent of the Aboriginal title-holder when government or third parties seek to use the land. If that is not possible, a compelling and substantial public purpose, consistent with the Crown’s fiduciary duty, is required to justify an infringement on title.

Once title is established, in order to ensure the Crown has faithfully discharged its fiduciary duty, Aboriginal groups have the opportunity to review prior Crown conduct and legislation. For example, projects may be cancelled if the Crown began a project, before a declaration of Aboriginal title, without the Aboriginal group’s consent and the continuation of the project would unjustifiably infringe on title. Similarly, previous legislation validly enacted may be rendered inapplicable going forward, to the extent it unjustifiably infringes on Aboriginal title.

Justifying an Infringement

The basis behind the principle of justification is the process of reconciling Aboriginal interests with the broader interests of society as a whole. Accordingly, to justify overriding the wishes of the Aboriginal title-holder on the basis of the broader public good, the government must ensure that the proposed governmental action is substantively consistent with the requirements of section 35 of the Constitution Act, 1982. This rigorous test means the Crown must show: 1) that it discharged its procedural duty to consult and accommodate, 2) that its actions were backed by a compelling and substantial objective; and 3) that the government action is consistent with the Crown’s fiduciary obligation to the group.

The Crown’s fiduciary duty requires government to act in a way that respects the group nature of Aboriginal title and cannot justify an incursion that would substantially deprive future generations of the benefits of the land. This duty also infuses an obligation of proportionality into the justification process. That is, the incursion is necessary to achieve the government’s goal (rational connection) and the benefits of the goal do not outweigh the adverse effects on the Aboriginal interest (proportionality of impact).

Interests Capable of Justifying an Infringement on Aboriginal Title

The Tsilhqot’in decision recognizes that certain development is necessary. In quoting Delgamuukw , the Court held that the kinds of objectives that are consistent with a compelling and substantial public purpose and which could, in principle, justify the infringement of Aboriginal title are: the development of agriculture, forestry, mining, hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, and the building of infrastructure and the settlement of foreign populations to support those aims. Such objectives, of course, would still require satisfying the test set out in section 35 of the Constitution Act, 1982, before being legally supportable given that such objectives would infringe Aboriginal title interests.

Where Title is Asserted but not yet Established

The Tsilhqot’in decision is significant, despite the fact that the majority of Aboriginal groups in Canada have not yet established Aboriginal title to their lands.

As long as an Aboriginal group asserts Aboriginal title, section 35 of the Constitution Act, 1982 requires the Crown to consult with the Aboriginal group and, where appropriate, accommodate its interests. The nature and extent of consultation will depend upon the prima facie strength of the group’s Aboriginal title claim and the potential adverse impact of the project, but the Crown must be mindful that lack of consultation at the outside may jeopardize a project once title as been established.

Applicability of Provincial Laws of General Application to Land Held under Aboriginal Title

The Court held that provincial laws of general application apply to lands held under Aboriginal title with two important constitutional limits. First, section 35 of the Constitution Act, 1982 which sets out a three-part test: a) the limitation of the Aboriginal title imposed by the legislation must be reasonable; b) the legislation must not impose undue hardship; and c) the legislation cannot deny the title-holder its preferred means of exercising its title rights. All three factors must be considered.

The second constitutional limit of provincial laws is by the federal power over “Indians, and Lands reserved for Indians” under section 91(24) of the Constitution Act, 1867.

Notably, the Court rejected the argument that the constitutional doctrine of inter-jurisdictional immunity applies to Aboriginal title lands – the idea being that provincial and federal governments enjoy protected subjects of legislative power on which the other level may not intrude. The Court held the doctrine was developed to address disputes between provinces and the federal government, therefore, there is only one standard for determining the validity of provincial or federal laws that infringe on Aboriginal title: whether such infringements can be justified under s. 35 of the Constitution Act, 1982, taking into account whether the Crown fully discharged its consultation obligations and acted in a manner consistent with its fiduciary duties.

Pleadings in Aboriginal Title Cases

The function of pleadings is to provide the parties and the court with an outline of the material allegations and relief sought. Future land claims will not be barred because of minor defects in the absence of clear prejudice. This functional approach is significant, reflecting the reality that at the outset of trial preparation, legal principles may be unclear, evidence on land use may be uncertain and the best evidence may emerge as the case evolves. What is at stake is nothing less than justice for the Aboriginal group’s present and future generations and the reconciliation between Aboriginal groups and broader society. A technical approach to pleadings would not serve these purposes.

Where Does the Future Lie?

The Tsilhqot’in decision represents a major legal and political victory for Aboriginal groups in their long struggle to establish title to their traditional lands and territories.

By recognizing and confirming the intimate and inexorable bond Aboriginal groups hold to their territory the Supreme Court has emphatically and unambiguously called for governments and third parties to stop wasting time and deal honourably with Aboriginal groups in a manner that respects the Aboriginal perspective. The highest court in Canada makes powerful statements of the extensive rights of Aboriginal peoples – including Aboriginal title – over a broad territorial area. The findings and legal principles set out in this decision are not trivial and cannot be denied by government or by third parties. The goal now must be to achieve a new, positive step forward.

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