Your land and my land – Supreme Court of Canada declares Aboriginal title to Tsilhqot’in

A landmark decision has been made by the Supreme Court of Canada today granting a declaration of Aboriginal title to a portion of the traditional lands of the Tsilhqot’in Nation in BC and making that title meaningful for the Tsilhqot’in Nation – Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. **

Why is a wills and estates lawyer interested in Aboriginal law? Because I am a Canadian, and I am one of the many often silent non-Aboriginal people in our country who want to be part of the movement in our country toward true reconciliation with First Nations. As the Supreme Court of Canada itself says:

Aboriginals and non-Aboriginals are “all here to stay” and must of necessity move forward in a process of reconciliation.

The court sets out the background best:

“[3]    For centuries, people of the Tsilhqot’in Nation — a grouping of six bands sharing common culture and history — have lived in a remote valley bounded by rivers and mountains in central British Columbia.  They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped.  They repelled invaders and set terms for the European traders who came onto their land.  From the Tsilhqot’in perspective, the land has always been theirs.

[4]   Throughout most of Canada, the Crown entered into treaties whereby the indigenous peoples gave up their claim to land in exchange for reservations and other promises, but, with minor exceptions, this did not happen in British Columbia.  The Tsilhqot’in Nation is one of hundreds of indigenous groups in British Columbia with unresolved land claims.”

The Tsilhquot’in claimed a sparsely populated 1,700 or so square km or 5% of what the Tsilhqot’in regard as their traditional territory in central BC. The claim did not include privately owned lands or underwater lands. The litigation initially started when the BC government granted a commercial logging licence on Tsilhqot’in traditional territory in 1983.

The law on the way to this case – Previous Supreme Court of Canada decisions had accepted that the assertion of British sovereignty gave the Crown underlying title to all of the land, but also found that Aboriginal land rights or title also survived unless later extinguished by treaty or otherwise. Since there was this unusual mix of Crown sovereignty and Aboriginal rights co-existing, Aboriginal title was characterized as sui generis, or unique, in that it “arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward”. Aboriginal title does not include all of the ownership rights that we would normally associate with title to land (such as the right to kick out anyone you don’t want there, which would be inconvenient for Canada to say the least). The court had previously fleshed out other ideas about the right of the Aboriginal groups to use and control land, the test for infringing on Aboriginal title, the need to consult with First Nations, and the need to negotiate in good faith to resolve land claims.

Today’s decision – This case built on that foundation. In this case, the Supreme Court of Canada:

1.  Set the test for Aboriginal title – Aboriginal title flows from occupation in the sense of regular and exclusive use of land.

There must be sufficient pre-sovereignty occupation, continuous but not unbroken occupation if present occupation is relied on, and exclusive historic occupation – these are useful lenses through which to look at Aboriginal title, not separate and strict categories. The actions of the Aboriginal group making the claim must have communicated to third parties that the land was held for that group’s purposes. The analysis is culturally sensitive.

Title can include not only village sites and harvesting areas intensively used by a group but larger territories regularly used by ancestors for hunting, fishing, trapping and foraging. Nomadic and semi-nomadic groups can establish Aboriginal  title. The presence of other groups or individuals on the land would not necessarily negate exclusivity (if, for example, permission was required or treaties were in place).

2. Made a declaration that the Tsilhqot’in had established Aboriginal title based on their historical use of the land.

Although the population was small, the Tsilhquot’in used the land regularly for foraging, hunting and trapping. The mountainous terrain would not have supported a much larger population. Prior to sovereignty the Tsilhquot’in repelled outsiders and demanded permission to enter their lands.

3.  Set out the rights Aboriginal title confers. Aboriginal title is the right to use and control the land and to reap the benefits from it. This is a right to proactively use and manage the land, not just a right of first refusal.

Title is held not only for the present generation but for succeeding generations. The land can be used in modern ways as well as traditional ways.

Once Aboriginal title has been found, governments and others require consent before using the land. An incursion without consent, after proper consultation with the Aboriginal group and accommodation, would have to be justified by the government for a compelling and substantial public purpose (considered from the Aboriginal as well as broader public perspectives) and would also have to be consistent with the Crown’s fiduciary duty to the Aboriginal group. Incursions that have the effect of substantially depriving future generations of the benefit of the land cannot be justified.

In this case, the BC government’s land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot’in people.

4.  Clarified that if an Aboriginal group has made a claim to Aboriginal title that has not been determined, the government must consult with the group asserting title and accommodate its interests if appropriate.

The stronger the claim for Aboriginal title and the more severe the adverse impact the action would have, the more consultation and accommodate would be required.

    5.  Held that provincial laws of general application do apply to Aboriginal title lands. There are limits though, and Aboriginal title may be breached if the law results in a meaningful diminution of an Aboriginal right.

This decision was a long time in coming, and it will be fascinating to see what comes next.

** In this summary, I have often used the court’s own words without putting in quotation marks. As this is not an academic paper or formal publication, I am taking the liberty to do this so that the summary is easy to read.