Summary
Today, the Supreme Court of Canada (the "Court") rendered one of the most significant Aboriginal law cases in Canadian history. The decision in the Tsilhqot'in case marks the first time in Canadian law that a declaration of Aboriginal title has been made; prior cases had indicated that Aboriginal title as a legal concept existed, but no case had made an actual finding of Aboriginal title until now. In so doing, the Court has clarified the test for establishing Aboriginal title, and the implications of such a finding for Aboriginal, provincial and federal governments. The Court has also provided guidance as to the circumstances under which provincial or federal governments can infringe an Aboriginal title right, and the province's role in regulating lands subject to Aboriginal title.
The case is expected to have significant ramifications, particularly in British Columbia, given the relative paucity of Aboriginal treaties across that province.
Background and Procedural History
B.C. Supreme Court
In response to B.C.'s approval of a private company's plan to begin logging in an area in the interior of the province in 1989, members of the Tsilhqot'in Nation (the "Tsilhqot'in") initiated an action seeking: (i) the recognition of certain Aboriginal rights; (ii) a declaration of title over their traditional territory (the "Claim Area"); and (iii) damages. The trial – which was partly held in the community – occupied 339 court days over a span of nearly five years.
In his decision, the trial judge, the late Justice Vickers, applied the test for Aboriginal title from the Supreme Court of Canada's decision in Delgamuukw v. B.C., [1997] 3 S.C.R. 1010 and held that title had been proven over broad portions of the Claim Area.
Although, due to a technical error in the pleadings, Justice Vickers ultimately decided he could not issue a "formal" declaration of Aboriginal title over areas smaller than the Claim Area, he nonetheless opined that Aboriginal title had been established on the evidence presented.
Justice Vickers also held that the B.C. Forest Act did not apply to Aboriginal title lands and that the Tsilhqot'in have the right to hunt and trap throughout the Claim Area, and trade skins and pelts in order to support moderate livelihoods.
B.C. Court of Appeal
The B.C. Court of Appeal disagreed with Justice Vickers, and held that applying a broad "regional or territorial" standard to the Tsilhqot'in's title claim rather than a site-specific one was incorrect. The Court also stated that broad claims to title made on the basis of a territorial theory of occupation did not fit within the purpose of s. 35 of the Constitution Act, 1982, which is the reconciliation of Aboriginal interests with Crown sovereignty. Accordingly, the Court of Appeal found that Aboriginal title could only be established in relation to certain very limited and very small parcels of land within the Claim Area, and not to the wider territory. Outside these small parcels of land, the Tsilhqot'in's rights to hunt, trap and trade were recognized throughout the Claim Area.
Issues on Appeal
The Court considered the following six issues in deciding the appeal:
(a) Whether the "technical error" in the Tsilhqot'in's pleadings noted by the courts below precluded the issuance of a declaration of Aboriginal title;
(b) What the test for Aboriginal title is, and in particular, to what extent Aboriginal peoples may prove title throughout their traditional territories as opposed to at specific sites;
(c) Whether the test for Aboriginal title was met in this case;
(d) The legal characterization of Aboriginal title;
(e) What duties were owed by the Crown to the Tsilhqot'in at the time of the Crown's decision to allow logging within the Claim Area; and
(f) The extent to which provincial laws of general application, and in particular the B.C Forest Act in this case, may apply to Aboriginal title lands.
The Court's Decision
(a) Technical Errors in the Pleadings
Before the lower courts, B.C. had argued that the Tsilhqot'in's claim should be barred because of defects in the pleadings. The Court noted that in light of the inherent uncertainty in Aboriginal cases, and the public interest of reconciliation between Aboriginal groups and broader Canadian society, "a functional approach should be taken to pleadings in Aboriginal cases" with a view to outlining with some clarity the material allegations and the relief sought, and overlooking minor defects in the absence of clear prejudice.
Such an approach, the Court reasoned, respects the reality that the applicable legal principles and evidence relating to an Aboriginal title claim may be unclear at the outset of the case, and that it is in any event "in the broader public interest that land claims and rights issues be resolved in a way that reflects the substance of the matter" to achieve reconciliation mandated by s. 35.
(b) The Test for Aboriginal Title
Referring to its previous decision in Delgamuukw and the High Court of Australia's decision in Western Australia v. Ward (2002), 213 C.L.R. 1, the Court confirmed that the test for Aboriginal title relied on three characteristics that should not be considered independently or in a rigid fashion: (i) sufficient pre-sovereignty occupation; (ii) continuous occupation (where present occupation is relied on); and (iii) exclusive historic occupation.
In explaining how the test ought to be applied to a historically mobile group like the Tsilhqot'in, the Court cautioned against losing or distorting the Aboriginal perspective by "forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights." As such, sufficiency, continuity and exclusivity "are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established".
Turning to the sufficiency of occupation – the requirement that lay at the heart of this case because of the historic mobility of the Tsilhqot'in – the Court held that context was essential, and that an Aboriginal title claimant must show "that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes" with proper regard to "the manner of life of the people and the nature of the land". This could include "nomadic or semi-nomadic" patterns of occupation, provided it was regular or common use. The Court acknowledged that intensity and frequency of use could vary with the context, including the size of the group in question and the character of the land.
Importantly, the Court expressly rejected the B.C. Court of Appeal's suggestion that Aboriginal title was confined to "specific village sites or farms", holding instead that a "culturally sensitive approach" suggests that 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 a particular case, evinces an intention to hold or possess the land in a manner comparable to what would be required to establish title at common law.
On the second requirement of continuity, the Court referred to its previous decision in R. v. Van der Peet, [1996] 2 S.C.R. 507 and confirmed that establishing continuity of occupation did not require an "unbroken chain" of occupation, but rather that evidence of present occupation, if relied on, "must be rooted in pre-sovereignty times."
Finally, with respect to the exclusivity requirement, the Court stated that it must be understood in the sense of "intention and capacity to control the land" and factors that could be considered in that respect include (i) the characteristics of the claimant group, (ii) the nature of other groups in the immediate area, (iii) the characteristics of the land in question, (iv) historical exclusion of others from the land, by granting (or denying) permission or even a lack of any challenge to occupancy.
(c) Whether the test for Aboriginal title was met in this case
The Court confirmed that whether the evidence in a particular case supports Aboriginal title is a question of fact to be determined by the trial judge, and held that the trial judge applied the proper test of "regular and exclusive use of the land." Conversely, the Court held that the Court of Appeal had erroneously applied a standard of "regular presence on or intensive occupation of particular tracts" and further confirmed that the Delgamuukw case had affirmed a "territorial" approach.
Reviewing the trial judge's approach, the Court held that he had made no findings that were unsupported by the evidence before him with respect to his conclusion that the "Tsilhqot'in occupation was both sufficient and exclusive at the time of sovereignty" and that, in any event, it was "buttressed by evidence of more recent continuous occupation."
(d) The Legal Characterization of Aboriginal Title
Reviewing its earlier decisions relating to Aboriginal title, the Court confirmed that Aboriginal title includes the following rights:
- Decision-making power over how the land will be used;
- Enjoyment and occupancy of the land;
- Possession of the land;
- Economic benefits arising from the land; and
- Pro-active use and management of the land.
The Court also clarified the restrictions that apply to Aboriginal title lands: they can only be alienated to the Crown and they cannot be encumbered in such a way that "would prevent future generations of the group from using and enjoying" the lands or see them "developed or misused in a way that would substantially deprive future generations of the benefit of the land."
The Court confirmed that where Aboriginal title is unproven, the Crown owes a duty to consult and, if appropriate, accommodate the unproven Aboriginal interest. However, where Aboriginal title has been proven, the Court confirmed that "governments and others seeking to use the land must obtain the consent of the Aboriginal title holders" and in the absence of such consent, the only recourse is for the Crown to establish that an incursion on the land is justified.
Such proof of justification requires, in addition to consultation, establishing both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal title holder. Incursions on Aboriginal title lands must be necessary to achieve the government's objective, and cannot go further than necessary to achieve it. Finally, the Court held that incursions of a nature that would substantially deprive future generations of the benefit of the land cannot meet the test of justification.
The Court also confirmed that there is, in any event, a retrospective aspect to Aboriginal title, once proven. In the example of a project that is undertaken without consent prior to Aboriginal title being proven, upon Aboriginal title being established the Crown "may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing" and, in the example of legislation, it "may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title."
(e) What duties were owed by the Crown to the Tsilhqot'in at the time of the Crown's decision to allow logging within the Claim Area
The Court held that prior to Aboriginal title being established, the Crown owed the Tsilhqot'in a duty to consult and accommodate them about the logging activities, with a view to preserving their interest in the Claim Area. Having now established Aboriginal title, the Court held that the Tsilhqot'in have the right to determine the uses to which the land in question is put, and to enjoy its economic fruits and proactively use and manage the land.
The Court further held that when Crown officials engaged in the planning process for the removal of timber, proper regard was not given to the Tsilhqot'in's strong case for title, and meaningful consultation regarding their interests did not occur; as such, the Crown breached its duty to consult the Tsilhqot'in.
Importantly, the Court concluded by remarking that "[g]overnments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group."
(f) The extent to which provincial laws of general application, and in particular the B.C Forest Act in this case, may apply to Aboriginal title lands
The Court reasoned that provincial laws of general application apply to lands held under Aboriginal title, subject to constitutional limits.
As a matter of statutory construction, the Court held that the B.C. Forest Act applies to land subject to claims of Aboriginal title. Once Aboriginal title is confirmed, however, the Court held that the lands become "vested" in the Aboriginal group, and as such are no longer "Crown land" within the meaning of the Forest Act, and the Forest Act, as currently constructed, ceases to apply.
The Court went on to assess whether the application of the Forest Act, in an amended form, could apply Aboriginal title lands within constitutional limits.
In doing so, the Court outlined a two-step analysis. First, the elements of the Aboriginal right at stake must be characterized. Second, the legislation must be assessed to determine if its application would result in a meaningful diminution of the right. The Court held that three factors are to be used in determining whether an infringement has occurred: (i) whether the limitation imposed by the legislation is unreasonable; (ii) whether the legislation imposes undue hardship; and (iii) whether legislation denies the holders of the right their preferred means of exercising it.
Notably, the Court drew an important distinction between general regulatory legislation, which may affect the manner in which Aboriginal rights can be exercised, and legislation that assigns Aboriginal property rights to third parties. The Court reasoned that the former, such as legislation aimed at environmental conservation, will often pass the above test, whereas the latter will not.
In instances where an infringement of Aboriginal title is sought but consent has not been obtained, the Court confirmed that the Crown will need to justify any such infringement by demonstrating that: (i) it complied with its procedural duty to consult with the title holder and accommodate to an appropriate extent at the stage when infringement was contemplated; (ii) the infringement is backed by a compelling and substantial legislative objective in the public interest; and (iii) the benefit to the public is proportionate to any adverse effect on the Aboriginal interest.
Finally, while not necessary for the disposition of the appeal, the Court commented on whether BC possessed a compelling and substantial legislative objective in issuing the logging permits at issue. One of the main objectives put forward by the province was that issuance of the permits would result in economic benefits being realized as a result of logging in the Claim Area. The Court rejected this position, noting that the focus should be on the economic value of logging in relation to the detrimental effects on Aboriginal title, not the economic viability of logging viewed solely from the perspective of the tenure holder.
Gowlings' Guy Régimbald was co-counsel for the intervener Indigenous Bar Association in Canada in its intervention before the Supreme Court of Canada.
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