Written by Radha D. Curpen, Wally Braul, E. Bruce Mellett, Jessica E. Mathewson, and Brian Monaco
On June 26, 2014, the Supreme Court of Canada delivered a unanimous decision in Tsilhqot'in Nation v British Columbia, 2014 SCC 44. The decision marks the first time that Aboriginal title has been granted – until now, the concept existed only in theory.
The long anticipated decision addresses two significant issues affecting Aboriginal title and provincial jurisdiction over those lands.
First, the Supreme Court granted the Tsilhqot'in First Nation a declaration of title over the non-treaty claimed lands, clarifying that the test to establish Aboriginal title requires sufficient, continuous (where present occupation is relied on) and exclusive occupation of the land claimed and upholding the trial judge's findings of fact that a declaration of title to those areas was made out on the evidence. The decision sets a precedent for how title claims will be sought and established in the future and raises questions about how land claims processes will operate.
Secondly, the Court confirmed that even where Aboriginal title is established, provincial laws and regulations may continue to apply, subject to considerations of justified infringement under s. 35 of the Constitution Act, 1982.
The decision poses many implications for development activities in British Columbia and elsewhere and should lead many to question whether consultation and accommodation processes are sufficient given the possibility of title declarations.
The civil action claim asserted by the Tsilhqot'in First Nation was commenced more than 20 years ago, involving lands in Central British Columbia west of Williams Lake. At a lengthy hearing of 339 days, the key issue was whether the Tsilhqot'in First Nation was entitled to Aboriginal title to all or part of the Claim Area. The trial judge found that because the Tsilhqot'in asserted an "all or nothing" title claim, a declaration of title could not be granted, as they exclusively occupied some areas but not others. The findings were without prejudice to the Tsilhqot'in First Nation's ability to pursue specific title claims at a later date.
The trial judge also held that, to the extent Aboriginal title was established, British Columbia no longer had jurisdiction under the Forest Act and related legislation to grant harvesting rights and other authorizations, under the doctrine of interjurisdictional immunity.
The key difference between the lower court decisions was the extent to which the First Nation claimants need to establish continuous and exclusive occupation over defined areas of land. The trial decision, recognizing the nomadic nature of this First Nation's existence over time and the seasonal aspects of some of the land's uses, adopted what was considered a more flexible approach to the test for establishing Aboriginal title. By contrast, the B.C. Court of Appeal suggested the test required a higher threshold of continuous and exclusive physical occupancy of defined areas in order to prove a claim, describing the requirement as "intensive presence at a particular site". It explicitly rejected a broad "territorial" approach to Aboriginal title, finding it would be "antithetical to the goal of reconciliation".
The Decision of the Supreme Court of Canada
The Test to Establish Title
The Supreme Court favoured the trial judge's reasoning and granted the declaration of Aboriginal title to the broader territory asserted by the Tsilhqot'in, with the exception of privately owned land within the Claim Area. The Supreme Court clarified the test set out in its 1997 Delgamuukw ruling, which held that Aboriginal title can be found if the Aboriginal group occupied the area with sufficiency, continuity, and exclusivity. These factors are not requirements in and of themselves, but rather a lens to view the requirement of occupation through.
Sufficiency entails considering how regularly the group used the territories. It requires taking into account fact-specific determinations such as the group's size, manner of life, material resources, technological abilities and the character of the lands claimed. The Court looked for evidence of strong presence on the land demonstrating the land belonged to, was controlled by, or was under the exclusive stewardship of, the claimant group. The court considered the size of the group and the carrying capacity of the land in determining whether they used it regularly. Although the size of the group was small (approximately 400 people pre-sovereignty), the carrying capacity of the land was limited - it was harsh, mountainous, and could only hold 100 to 1,000 people.
Continuity is relevant when the group relies on the fact that it presently occupies the land as proof that it occupied it pre-sovereignty. On continuity, the Court provided less guidance – it appears that if pre-sovereignty proof is not available, proof of continuity must exist – but this does not require an unbroken chain of continuity. In this case, evidence was provided of present occupation. This was considered against archeological evidence, historical evidence and oral evidence, which indicated a continued presence.
Exclusivity involves an intention and capacity to control the land. Proving exclusivity will create the distinction between Aboriginal rights and Aboriginal title. Where occupation is not exclusive, Aboriginal rights, for example to hunt and fish on the lands, may be found. Where occupation is exclusive, title may be found. Exclusivity requires, for example, proof others were excluded, proof others were only allowed access with permission, or even proof there were no challengers to occupation.
What is Aboriginal Title?
Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits. It is a burden on Crown title. Aboriginal title holders get the beneficial interest; the Crown does not retain it. It is the right to decide how the land is to be used, the right of enjoyment and occupancy, the right to possess the land and economically benefit from it, and the right to pro-actively use and manage the land.
If the Crown seeks to use the title land or to grant rights to a third party such as an energy company, consent from the Aboriginal group is required. If consent is not granted, it must be shown that the infringement of title is justified (or in other words, that it is in the broader public good to infringe the right). Justifying the infringement entails three steps:
- First, the government must show it discharged its procedural duty to consult and accommodate.
- Secondly, the Crown must show that its actions were backed by a compelling and substantial objective. Whether a compelling and substantive objective exists is considered from both the Aboriginal and the broader public perspective. The Supreme Court cited its reasons from Delgamuukw which stated that agriculture, forestry, mining, hydroelectric power, general economic development, protection of the environment or endangered species, building of infrastructure and the settlement of foreign populations are the kinds of objectives that are consistent with this requirement.
- Thirdly, based on the Supreme Court decision in Sparrow, the Crown must demonstrate that its actions are consistent with its fiduciary obligations. This requires the Crown to act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. Under the fiduciary duty, the infringement must also be proportional, meaning: (i) the incursion is rationally connected to the government's goal, (ii) the incursion goes no further than necessary to achieve the goal, and (iii) the adverse effects of the incursion on Aboriginal impacts do not outweigh the benefits that flow from the goal.
How will the Crown's ability to grant permits be dealt with where Aboriginal title claims are made? The duty to consult is always based on the strength of the claim, but the Supreme Court highlighted that the Crown must take appropriate care to preserve the Aboriginal interest pending final resolution, where title claims are particularly strong. If title is established, the Crown may need to reassess its prior conduct. If a project was begun without consent prior to the establishment of title, the Crown may need to reassess or cancel that project if its actions can no longer meet the test set out above. The Court reiterated that if there were concerns over title claims, consent could be sought and granted by the Aboriginal group.
Applicability of Provincial Regulation
The Supreme Court ruled that provinces may still regulate land use for Aboriginal title land, but are limited by s. 35 of the Constitution Act, 1982, which requires governments to have a compelling and substantive objective and to act according to the fiduciary duty they owe to Aboriginal people, as set out in Sparrow. In some cases, the province's power may also be limited by the federal power over "Indians and Lands reserved for the Indians" under s. 91(24) of the Constitution Act, 1867.
With respect to the Forest Act, it applies to "Crown timber", which requires the land be vested in the Crown. Where title has been granted, as in this case, the lands become vested in the Aboriginal group and are no longer Crown lands, meaning that the timber was no longer "Crown timber" and the Forest Act no longer applies. Where lands are subject to unproven title claims, the land still vests in the Crown and legislation such as the Forest Act applies. Otherwise, vast areas of the province would not be subject to legislation.
Where a province wants legislation to apply to title lands, it must consider whether there is a prima facie infringement and then whether that infringement is justified. The right in question must be considered. In the case of title, this is: the right to exclusive use and occupation; the right to determine the uses to which the land is put, subject to the limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and the right to enjoy the economic fruits of the land.
In considering prima facie infringement, the Court stated that the following must be considered: whether the limitation imposed is unreasonable; whether the legislation imposes undue hardship; and whether the legislation denies the holders their preferred means of exercising the right. General legislation (with respect to environmental protection, for instance) will generally pass the test because it is reasonable, will not impose undue hardships and not deny the rights holders their preferred means of exercising their rights. However, any legislation which attempts to assign Aboriginal rights to third parties may result in infringement.
To justify an infringement, the Crown must demonstrate that: (i) it complied with its procedural duty to consult and accommodate; (ii) the infringement is backed by compelling and substantive objective; and, (iii) the benefit to the public is proportionate to any adverse effect on Aboriginal interest. In obiter, the Supreme Court stated there could be no compelling and substantive objective in this case, as the economic benefits and the need to prevent the spread of the mountain pine beetle were not supported by evidence. However, whether economic viability is a compelling and substantive objective is not a straightforward analysis – it must be compared to the detrimental effects it would have on the rights.
The Supreme Court determined that interjurisdictional immunity, as considered by the Court of Appeal, does not apply in this case because Aboriginal title affects both provincial and federal powers. The test for infringement and justification is the same for both the provincial and federal governments. Aboriginal rights are a limit on both federal and provincial power, not an issue of ensuring two governments can regulate within their core jurisdictions.
The Supreme Court's decision will create challenges for governments and proponents seeking to authorize development projects on Aboriginal lands. It clarifies, if not introduces, a significant new type of leverage – focusing on property rights - available to Aboriginal groups. Future Aboriginal litigation may increasingly be about proving title and then infringement of such property rights.
This is not to suggest that consultation issues will diminish in importance. Future claims will in part be determined by whether earlier consultation was adequate. It is clear from the decision that the depth of required consultation increases if the Crown knows or should know that title may be asserted and might eventually be declared. That is, the Supreme Court reiterated that where a strong claim to title is made out, the duty to consult, and if necessary accommodate, will be found at the highest end of the spectrum.
Aboriginal groups can therefore reasonably be expected to highlight Aboriginal title claims in the course of resource project regulatory processes. Where declarations of title are eventually made, the Crown and proponents may find that previous consultation was not enough and that consent is required. The Supreme Court's suggestion that projects approved by the Crown before the declaration of title may need to be reassessed or even cancelled once title is declared could raise potential concerns over some projects in Canada.
The decision's effects will be felt most directly in those areas where Aboriginal title has not been the subject of treaties, notably large parts of British Columbia, Atlantic Canada, northern Ontario and Quebec and in the Deh Cho area of the Northwest Territories. The decision's reasoning will also be attractive for those First Nations who assert that treaties did not extinguish title but were merely peace treaties.
Justification for infringing Aboriginal title will arguably require more proactive attention by the Crown. That is, the federal and provincial governments will need to adopt a more systematic approach to consulting with Aboriginal groups (as opposed to merely delegating some if not all consultation to proponents, which is a common Crown practice) and rationalizing any infringement in a transparent and principled way on a case-specific basis. This latter 'property rights/infringement' analysis is arguably a new endeavour for the Crown.
The decision also raises the question of how Aboriginal title will be proven going forward. This decision was a result of a very long and expensive civil action. Will the courts continue to require that title be proven only in a civil action, or can it proven in, for example, a judicial review or a tribunal proceeding? And, will the Crown, to discharge its duty of honour after this decision, create processes that provide timely opportunities for determining Aboriginal title?
At least theoretically, the Supreme Court decision creates an incentive to negotiate treaties. There are, however, reasons to doubt that today's largely moribund treaty-making exercises in Canada will be re-energized in the near-future. First, the clarified broad notion of Aboriginal title compels the Crown in BC to revisit the historic land/cost sharing approach reached by the provincial and federal governments; this template-type approach has been strongly criticized by Aboriginal groups well before the recent Supreme Court decision. That is, federal v. provincial negotiations over "who pays and how much" could take a long time before the Crown starts negotiating treaty terms with Aboriginal groups. Additionally, even with the Court's guiding principles, treaty-making requires a very substantial investment in time and money, raising questions over whether a special body should oversee treaty-making and whether Aboriginal groups should receive capacity funding. Another factor that will govern treaty-making is whether Aboriginal groups will accept treaty conditions of absolute surrender of any Aboriginal title claim, whether historic and prospective.
Finally, it is important to recognize that the Supreme Court was not asked to address all Aboriginal title issues. Future litigation, for example, will likely consider:
- if and how Aboriginal title can be applied in those many areas subject to overlapping Aboriginal claims;
- whether Aboriginal title extends to subsurface resources if they have not been traditionally used the Aboriginal group in question;
- the application of Aboriginal title in treaty areas, where Aboriginal groups might seek to argue that "cede and surrender" clauses do not extinguish title in an absolute way, given that these treaties were intended primarily as peace treaties;
- the assessment of damages for unjustified infringement; and
- the application of the Supreme Court decision to private lands.