High court weighs in on aboriginal claim

The Supreme Court of Canada June 26 released its highly anticipated decision in "Tsilhqot'in Nation v. British Columbia."

Called "ground-breaking" by observers, the judgment by Canada's highest court granted a declaration of Aboriginal title over a tract of Crown lands to the Tsilhqot'in Nation of the west central interior of British Columbia. It is the first time in Canadian history that Aboriginal title has been definitively established and affirmed.

The civil action claim asserted by the Tsilhqot'in First Nation in 2002 involves lands in central British Columbia west of Williams Lake. At a lengthy hearing of 339 days over five years, the key issue was whether the Tsilhqot'in First Nation was entitled to Aboriginal title to all or part of the claim area.

Justice Vickers of the British Columbia Supreme Court 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 court also held that, to the extent Aboriginal title was established, British Columbia no longer had jurisdiction under the Forests Act and related legislation to grant harvesting rights and other authorizations, under the doctrine of inter-jurisdictional immunity.

The key difference, attorneys say, between the BC 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 BC 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 Supreme Court favored the BC court's reasoning and granted the declaration of Aboriginal title to the broader territory asserted by the Tsilhqot'in. As did the trial court, 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 proves sufficient, continuous, and exclusive occupation. Sufficiency entails regular use of territories. Continuity is relevant when present occupation is relied on as proof of pre-sovereignty occupation. Exclusivity involves an intention and capacity to control the land.

The Supreme Court's approach highlighted how the characteristics of the particular claimant group and the land claimed could affect the existence of title.

Despite post-Delgamuukw jurisprudence suggesting the need for a site-specific approach to determining "Aboriginal Rights," the Supreme Court preferred a broad "territorial" approach to determining title.The Supreme Court clarified that Aboriginal title is an independent, beneficial legal interest, giving rise to a fiduciary duty on the part of the Crown.

A declaration of Aboriginal title confers the right to use and control the land and to reap the benefits flowing from its resources.

It allows for the use of the land in a way that benefits the collective as a whole, including future generations.

In allowing the appeal of the Tsilhqot'in from the decision of the British Columbia Court of Appeal in William v. British Columbia,2 the Supreme Court has: (a) clarified the law as it pertains to the establishment of Aboriginal title and the nature of such title; (b) addressed how the establishment of Aboriginal title affects the Crown's duty to consult with Aboriginal peoples; and (c) clarified how provincial (and federal) legislation may apply to lands subject to Aboriginal title, and if necessary, infringements may be justified.

Tsilhqot'in is a decision with potential implications for all parties involved in resource development in British Columbia and across Canada: Aboriginal groups, governments and proponents.

Tsilhqot'in does not alter the Crown's duty to consult and accommodate, which continues to apply wherever the Crown contemplates conduct that might adversely affect potential or existing Aboriginal rights or title.

However, as a practical matter, provincial and federal governments will need to dedicate greater resources to assist them in determining the strength of Aboriginal claims to title when carrying out consultation.

Transparency and sharing of information among Aboriginal groups, governments and proponents will be key to assessing the potential impacts of project activities to Aboriginal title and ensuring that the Crown's obligations to Aboriginal groups are met.

Where a project may infringe on Aboriginal title, governments and proponents will be motivated to reach agreements with potentially impacted Aboriginal groups in order to secure certainty around the land base for the development of resource projects.　

20 years of litigation

The litigation concerns the Tsilhqot'in's claims for Aboriginal rights and title in two areas known as Tachelach'ed and the Trapline Territory (Claim Area), stemming from decisions of the Provincial Crown to grant a forest license under the Forest Act in 1983 and a cutting permit in 1989 to Carrier Lumber Ltd. to log in the Trapline Territory. The Claim Area was confined to a sparsely populated area that constituted about five percent (a total of about 3,000 people) of the Tsilhqot'in's asserted traditional territory.

In brief, at the trial level, Justice Vickers of the BC court was tasked with considering whether:

The Tsilhqot'in held Aboriginal title and/or Aboriginal rights to all or part of the claim area;

The provincial Forest Act applied to Aboriginal title lands; and

The issuance of forest licenses and other authorizations unjustifiably infringed the Tsilhqot'in's rights in the claim area.

The BC Supreme Court found that there was sufficient evidence of occupation by the Tsilhqot'in to support a claim for Aboriginal title in certain parts of the claim Area, but refrained from granting a declaration of Aboriginal title as a matter of procedural fairness.

The BC Court of Appeal upheld the lower court's decision and dismissed the plaintiff's claims for Aboriginal title, finding that a "territorial claim" was not a viable foundation for a claim of Aboriginal title. In considering whether Aboriginal title was made out on the present facts, the appeals court applied a narrower test based on site-specific occupation of lands, requiring proof of intensive use of definite tracts of land within reasonably defined boundaries at the time of European sovereignty.

The Court of Appeal concluded that there was insufficient evidence of a regular presence or intensive occupation of specific tracts of land in the claim area and declined to make a declaration of Aboriginal title in respect of the claim area or any specific sites within the claim area. The appeals court was of the view that the Tsilhqot'in's culture and traditions could still be fully respected without recognizing Aboriginal title over the claim area, and affirmed the Aboriginal rights of the Tsilhqot'in in the area.

A different view

The Supreme Court of Canada allowed the Tsilhqot'in's appeal and made a declaration of Aboriginal title over the claim area, finding that the trial court had correctly applied the test for Aboriginal title and correctly found that, on the evidence, the Tsilhqot'in had established Aboriginal title over the claim area. Canada's high court noted that the procedural reasons that had originally precluded a declaration of title at the trial level were no longer relied on by the province and were not at issue. The Supreme Court further declared that British Columbia had breached its duty to consult with the Tsilhqot'in in respect of the issuance of logging licenses under the Forest Act.

In concluding that the test for Aboriginal title was met, the high court also clarified the test based on the principles it had set out in its 1997 decision, "Delgamuukw v. British Columbia." In summary, "Delgamuukw" established that Aboriginal title to land is based on "occupation" of such lands prior to the assertion of European sovereignty. The Aboriginal claimant must successfully demonstrate that such occupation possesses three characteristics: The occupation must be sufficient (at the time of European sovereignty), continuous (where present occupation is relied upon), and exclusive (historically).

The Supreme Court of Canada disagreed with the Court of Appeal's views that occupation sufficient to ground Aboriginal title should be confined to specific settlement sites, and further disagreed that evidence of intensive use of a definite tract of land was required. Rather, the high court held that Aboriginal title may extend to tracts of land that were regularly used for hunting, fishing, trapping or foraging and over which the Aboriginal group exercised effective control at the time of European sovereignty. The high court held that the narrow approach put forth by the Court of Appeal would be inconsistent with the reality of the semi-nomadic lifestyle of groups like the Tsilhqot'in.

The Supreme Court of Canada held that an assessment of the sufficiency of occupation is a context-specific inquiry that requires a culturally sensitive approach.

It must be approached from both the common law perspective (e.g.

concepts of possession and control) and the Aboriginal perspective (including the laws, practices, customs and traditions of the Aboriginal group).

The Aboriginal group must demonstrate that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes, and provide evidence of a "strong presence on or over the land claimed" indicating that the land was controlled by, or under the exclusive stewardship of the Aboriginal group.

The Supreme Court noted that continuity of occupation between present and pre-sovereignty occupation does not require proof of an unbroken chain of continuity between present and past practices, but rather that the present occupation must be rooted in pre-sovereignty times. This is determined on the facts. Exclusivity of occupation requires proof that the Aboriginal group had the "intention and capacity to retain exclusive control" over the lands, and this also must be approached from the common law and Aboriginal perspective.

Aboriginal rights?

The Supreme Court concluded that, "Aboriginal title is what it is - the unique product of the historic relationship between the Crown and the Aboriginal group in question." Aboriginal title is a burden on the underlying title asserted by the Crown at sovereignty, giving rise to a fiduciary duty on the part of the Crown. While other forms of property ownership (e.g. fee simple) may assist in understanding aspects of Aboriginal title, they do not dictate precisely the nature of Aboriginal title.

The high court held that Aboriginal title is a beneficial interest in the land, and confers on the Aboriginal group holding it rights that are similar to those associated with fee simple ownership: Rights to determine how the land is used, enjoyment and occupancy, possession, the right to the economic benefit of such uses, and the right to pro-actively manage the land.

However, there are also limits on such protected uses of Aboriginal title lands.

As a result of the collective nature of Aboriginal title, use of the land must be consistent with the nature of the group's attachment to the land and lands must not be encumbered in ways that would deprive future generations of the Aboriginal group from enjoying the benefit of the land.

Further, Aboriginal title lands cannot be alienated except to the Crown, which maintains underlying title to the land.

The Supreme Court of Canada distinguished between the obligations of the Crown towards Aboriginal groups before and after Aboriginal title has been established.

Prior to the establishment of Aboriginal title, the well-known principles of consultation and accommodation of Aboriginal interests set down by the Supreme Court in "Haida Nation" continue to apply.

Where the Crown has real or constructive knowledge of the potential existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown must consult with the Aboriginal group, and where appropriate, accommodate the Aboriginal group.

Since Aboriginal title is the strongest form of right, a strong claim of Aboriginal title may attract more stringent duties on the part of the Crown.

However, once Aboriginal title has been proven, the Supreme Court held that given the exclusive rights conferred to an Aboriginal group by Aboriginal title, "governments and others seeking to use the land must obtain the consent of the Aboriginal title holders" in order to proceed with development. If the Aboriginal group does not consent, the government's only recourse is to establish that the proposed incursion on the land is justified under section 35 of the Constitution Act, 1982, on the basis of the broader public good. In order to do so, the Crown must demonstrate that:

It discharged its procedural duty to consult and accommodate;

Its actions were backed by a compelling and substantial objective; and

The governmental action is consistent with the Crown's fiduciary obligation to the Aboriginal group.

The Supreme Court of Canada adopted the observations of Lamer C.J. in Delgamuukw regarding the types of compelling and substantive legislative objectives that might justify the infringement of Aboriginal title, namely: "The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims..." The high court noted that justification must be considered from both the Aboriginal perspective as well as the broader public perspective, consistent with the goal of reconciliation.

Resource development projects are routinely faced with asserted but unproven Aboriginal title claims. The Supreme Court noted that as a practical matter, as the strength of a claim increases, the required level of consultation and accommodation will correspondingly increase. Further, the high court noted that:

"Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title."

The Supreme Court further commented that governments and individuals proposing to use or exploit land can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

The Supreme Court acknowledged that up to this point, the law had been unclear regarding whether a valid provincial law could ever justifiably infringe an Aboriginal right, or whether such justification was reserved for the federal government due to its constitutional jurisdiction. Canada's high court also noted inconsistencies between earlier judgments and the fact that this issue had never been explicitly resolved. In Tsilhqot'in, however, the Supreme Court has now provided a clear test to be applied to all government action (both federal and provincial) that may infringe Aboriginal rights or title.

Implications

Observers say this decision represents an important step in the development of Aboriginal rights litigation in Canada. While the decision is a significant victory for Aboriginal groups, it does not fundamentally alter the law in Canada. Since the Supreme Court of Canada's 1973 decision in 'Calder,' the law has recognized the possibility of Aboriginal title. It has long been a question of when, not if, an Aboriginal group would be successful in proving Aboriginal title.

It is important to note that there remains a high threshold to meet the test to establish Aboriginal title. Moreover, once Aboriginal title is established, it does not create a blanket prohibition on the government from using the land, provided that the government can justify the incursion. The Supreme Court's adoption of Lamer C.J.'s observations in "Delgamuukw" regarding the types of uses that may be justified should be a positive sign for industry proponents.

From a practical perspective, proponents of resource projects can expect an increased focus by governments on the strength of an Aboriginal claim to title as part of the consultation process.

For projects on lands subject to a strong case for Aboriginal title, governments are likely to seek to further insulate their decisions by carrying out more extensive consultation and accommodation discussions with Aboriginal groups.

There will almost certainly be increased pressure on both governments and proponents to reach agreements on resource projects that may infringe on Aboriginal title.

Where an agreement cannot be reached, proponents can expect governments to engage in a much more deliberate balancing of the public policy rationale for pursuing resource development.

"While questions remain, this decision provides additional clarity in a critical area of law. It affirms the scope of provincial jurisdiction and resolves a long-standing question about the circumstances in which government can justifiably infringe Aboriginal title. Finally, the decision provides further guidance to government, Aboriginal groups and proponents at an important time for the development of natural resources in Canada," attorneys say.

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, as opposed to alleged deficiencies over the adequacy of consultation.

The decision may reduce certainty about resource projects in areas of the country where Aboriginal title is or could become an issue, which includes almost all of British Columbia, much of Atlantic Canada, parts of Ontario and Québec and some of the North. The decision will also be attractive for those First Nations who assert that treaties did not extinguish title but were merely peace treaties.

The Supreme Court's suggestion that projects approved by the Crown before the declaration of title may need to be re-assessed or even canceled once title is declared could raise potential concerns over some projects in Canada.

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 consultation to proponents) and rationalizing any infringement in a transparent and principled way.

Attorneys say 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 be proven in, for example, a judicial review or a tribunal proceeding? And, will the Crown, to discharge its duty of honor after this decision, create processes that provide timely opportunities for determining Aboriginal title?

Finally, that the provinces can continue to regulate land subject to Aboriginal title claims and title determinations should be a welcome relief to many and will allow for consistent regulation across each province.

Some legal observers say concerns over widespread development restrictions resulting from this decision are likely premature.

On the issue of what public benefit objectives could justify infringement on Aboriginal title, the Supreme Court confirmed its decision in "Delgamuukw" that the development of agriculture, forestry, mining, hydroelectric power and infrastructure could be compelling and substantial, but would have to be considered on a case-by-case basis.

In this case, the enactment and application of British Columbia's forestry management and harvesting regime to the Aboriginal title lands of the Tsilhqot'in Nation failed to meet this test.

The findings of the lower court were upheld as to the limited public benefit (economic or ecological) of the forestry regime, and it was determined that undue hardship and denial of rights of the Tsilhqot'in Nation would result, according to the court.

"What perhaps should be given more attention is the assertion by the SCC that the Aboriginal title holder and any government authorizing development on the lands must ensure that such development does not deprive future Aboriginal generations of the control and benefit of the lands," some attorneys say. "We can expect that the exhaustion of particular resources and the footprint of proposed developments will be given significant scrutiny."

After 20 years in the courts, the success of the Tsilhqot'in Nation in this case has ushered in another phase of Aboriginal rights recognition in Canada and provides important guidance on how the concepts of sufficiency, continuity and exclusivity will be applied to Aboriginal title claims across Canada. Resource development in areas where Aboriginal title remains an issue (predominantly British Columbia and Eastern Canada but also parts of Ontario, Quebec and the North) will require enhanced Aboriginal engagement, clear public benefit and protection of future Aboriginal use.

Duty to consult

Karina Briño, president and CEO of the Mining Association of B.C., issued a statement June 26 in response to the Tsilhqot'in decision.

Briño said the trade group, which represents the interests of B.C.'s mining industry, is reviewing the Supreme Court of Canada's decision on "Tsilhqot'in Nation v. British Columbia."

She said the decision confirms that resource development over land where Aboriginal title is asserted must, by law, be preceded by meaningful consultation. It further reinforces that industry's commitment to meaningful consultation and engagement with First Nations will continue to position British Columbia as an attractive jurisdiction in which to mine. The decision provides certainty and clarification around aboriginal title and the application of provincial law and regulation on the land base, Briño added.

The Association for Mineral Exploration British Columbia also responded to the Supreme Court of Canada's judgment.

"While this is a complex and precedent-setting case that will require further review, we at AME BC know that the path forward is for the federal and provincial governments to continue consulting with the Tsilhqot'in Nation," AME BC Gavin C. Dirom President & CEO said.

"The outcome of such consultation will enable further investment from the mineral exploration and development industry that will create jobs and shared economic opportunity for all British Columbians, including the people of the Tsilhqot'in Nation.

Improved certainty about title, consistent decision making processes and the application of predictable and reasonable laws and regulations are critical to successfully attracting investment to British Columbia."

AME BC Chairman David McLelland said, "It is important to recognize that the Supreme Court of Canada confirmed that provincial laws and regulations will continue to apply in the Tsilhqot'in Nation Aboriginal title area, subject to section 35 of the Constitution Act. Government has the duty to consult with First Nations, but members of AME BC recognize that respectfully engaging with First Nations early and often creates mutual understanding, trust and respect. We have seen that mutual benefits can often occur when this approach is taken by everyone involved, including industry, First Nations and government," he added.