Friday, 4 July 2014

How the Supreme Court changed British Columbia - my thoughts on the Tsilhqot'in decision

To understand why last week’s Supreme Court of Canada decision in Tshilqot’in is so important, it is helpful to know what the Court actually decided. 

There were three key issues or questions.  First, what is the test for aboriginal title?  Put another way, where will you find it?  Second, what does it mean to have aboriginal title?  Is it really ownership of land, or something quite different, say, just a right to be consulted about its use? Third, what authority does the provincial government have over aboriginal title lands?  Are they like Indian reserves, where provincial land laws do not apply, or something different?

On the first and third questions, in particular, there were sharply different views taken by the trial court and the BC Court of Appeal.  Those views were based on those courts’ interpretations of prior court decisions.  The Supreme Court has now resolved those differences.  They’ve made clear what has been argued about for a long time.  And that clarity, in my view, will have a profound impact on the use and development of lands and resources in British Columbia.

The test for aboriginal title. 

Aboriginal title is the way our law gives effect to the fact of prior aboriginal presence on the lands of what is now Canada.  It’s not just the right to engage in culturally important practices such as fishing, trapping, hunting and forage - those activities are recognized and protected as aboriginal rights.  Aboriginal title is how the law recognizes the indigenous claim that “this land has always been ours”.  But putting it that way does not necessarily answer the question: what land are you talking about?  Is it the land that has been most intensively and continuously occupied, say, villages and their immediate surroundings?  Or is it larger areas of land, the territories over which First Nations have exercised dominion by using and regulating access for resource use purposes, assigning rights of ownership, and excluding other First Nations?  

In terms which do not do justice to the complexity of the question, but at least make the differences clear, it is sometimes said that this is the debate between the “postage stamp” theory of aboriginal title, and the “mountaintop-to-mountaintop” theory.

The answer could not be more important, at least in a province like British Columbia, where there are over 200 First Nations, and very few treaties.  If it’s the postage stamp theory, then aboriginal title will mostly be found in and around Indian reserves and will hardly affect the rest of the lands of the province.  If it’s the mountaintop-to-mountaintop theory, then large parts of the province will be aboriginal title lands because most First Nations in BC exercised dominion over large territories, with clearly recognizable internal rights of resource use and ownership, and histories of defending their lands against other First Nations.

The Supreme Court of Canada decided it’s not just villages, it’s traditional territories.  I say this not just because of the Court’s statement of the requirements for the proof of aboriginal title, but also because of the Court’s actual decision - reversing the Court of Appeal - that the Tsilhqot’in had established their claim for title over a large part of their traditional territory. 

What made the Tsilhqot’in title claim interesting from a legal perspective is the evidence that they were traditionally semi-nomadic.  Their use and occupation of large areas of land was, or so it was argued, less intensive than is required to support a claim to aboriginal title over a large area.  And yet the Supreme Court found in favour of the Tsilhqot’in claim to some 1700 square kilometres.  Not, it is true, the whole of their traditional territory.  But an area so large that, when you consider what we know of the histories and land use of most other First Nations in BC it is abundantly clear that aboriginal title must exist over vast tracts of the province.  

The content of aboriginal title.  

As the Court makes clear, aboriginal title means ownership largely as we would recognize it.  It includes the right to decide how the land will be used, and to occupy, enjoy, possess, and manage it.  Put plainly, it’s their land. There are limits, of course.  Aboriginal title land cannot be used in a way that would prevent future generations of the group from using and enjoying it.  It is held communally, not individually.  And it cannot be sold, except to the Crown.  But the court also made it clear that aboriginal owners are entitled to the economic benefits of their land, and they can use the land “in modern ways, if that is their choice.”  

There is little that is new law in this, aspect of the court’s decision, but it all means much more once it becomes clear that aboriginal title exists in large parts of the province - and indeed, wherever in Canada aboriginal title has not definitively been surrendered to the Crown by treaty or otherwise.

What about provincial powers? 

The constitution assigns exclusive legislative authority over “Indians and lands reserved to the Indians” to the federal government.  For this reason, provincial land laws generally do not apply on Indian reserves.  What about aboriginal title lands?  Some courts, including the trial judge in this case, have held that aboriginal title lands are federal enclaves, where provincial land laws cannot apply. 

It’s one thing of course to imagine the application of such a principle in a postage stamp aboriginal title context.  But if aboriginal title exists throughout the province, what would happen to the authority over land and resource development that the provincial government has exercised for over a century, and on which our resource economy is founded?

The Supreme Court of Canada has made new law here, by clarifying that a controversial rule of constitutional interpretation known as the principle of “interjurisdictional immunity” does not apply to aboriginal rights and title.  Accordingly, the province still has the authority to regulate land and resource development on aboriginal title lands.  But that authority is severely restricted by requirements that have been established by the courts as they have interpreted the recognition and affirmation of aboriginal rights and title established by section 35 of the 1982 Constitution Act.  In short, government may infringe aboriginal title, but only if the infringement can be justified.  Justification requires consultation with the aboriginal titleholder.  It means that the infringement must be minimal, consistent with government’s fiduciary responsibilities to aboriginal peoples, and backed by “a compelling and substantial objective.”  And it may mean offering accommodations.

This language is familiar to those who know the Supreme Court of Canada’s decisions in cases such as Sparrow, Delgamuukw and Haida Nation.  What the court has consistently been trying to do is to create a balance in which aboriginal rights are given strong recognition, without completely displacing government’s ability to govern in the larger public interest.  What’s important here is that the stakes are higher, once you recognize that large parts of British Columbia are not just territories claimed by aboriginal peoples but, most likely, owned by them. 

The court repeatedly makes it clear that the preferred method of authorizing development on aboriginal title land is to obtain aboriginal consent beforehand.  In simple terms, if you have aboriginal permission, then you don’t need to justify the infringement.  You also avoid the uncertainty that is created by the requirement of justification, particularly where aboriginal title is asserted but not yet proven.  Absent consent, government will not know if it has justified an infringement unless and until it has survived a court challenge.  This is inherently risky: as the court says, “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.”  Rather than proceed in the hope that the development can be justified, the better course is to obtain consent beforehand. 

There are many circumstances in which a First Nation may be willing to consent to an infringement of their asserted or proven title.  But almost certainly, if the infringement is in pursuit of an economic development objective - a forest licence, a hydro-electric dam, or a pipeline project - consent will come with a price tag.  Aboriginal people are unlikely to agree to the creation of economic value from their land unless they have a share in that value. 

The new law here is the court’s decision that the province still has legislative authority over aboriginal title land.  They reversed the trial judge on this point and ended a long legal debate over the question.  But while the province still has the power to regulate, it’s clearer than ever that it will only be able to exercise that authority if it is willing to share the benefits of economic activity with the aboriginal owners of the land on which it is proposed to take place.

And of course, there is no requirement that First Nations consent to that activity.  They may refuse, either because the price - the benefit - is not high enough, or because the cost - in environmental terms - is too high.  In such circumstances, government may only proceed if it meets the high burden of the requirements of justification.

What does all this mean?

I am in the camp of those who see this decision as transformational both as a matter of legal doctrine and, equally importantly, in its impact. It matters that the Supreme Court has, for the first time in its history, declared the existence of aboriginal title on specific lands outside Indian reserves.  It matters that it has done so by conclusively rejecting the postage stamp view of aboriginal title.  It also matters that it has rejected the enclave theory of aboriginal title, affirming provincial legislative authority over aboriginal title lands.  These are important legal questions, where the court’s clarification has been long awaited, and the judgement is bound to become the leading case on aboriginal title in Canada. 

And as to impact, the decision is of course profoundly important to the Tsilhqot’in, who fought so long for this result.  But only a fool would downplay the significance of this judgement for the rest of British Columbia.  While it is certainly true that the court has not drawn specific boundaries of aboriginal title land anywhere outside Tsilhqot’in territory, it has nonetheless inescapably redrawn British Columbia.  It has raised the stakes for aboriginal participation in economic development and complicated provincial land and resource decision-making in ways that may take years to sort out. 

But to contend that all this is important is not to say that the sky just fell on British Columbia.  There is nothing in this decision that need necessarily increase conflict or halt all development.  It will certainly cause many First Nations and project proponents to take a second look at their plans and strategies.  And in a province where land and resource development is always slow, expensive, and difficult, there’s a risk that it will become even harder to get things done.  But only, in my view, if government fails to recognize that this time out, the rules really have changed, and that now, more than ever, there is a need for real political leadership, provincially and federally, on this all-important file.  Now is not the time for governments to pause while they study their way into inaction.  Now is the time for something quite radically different.


  1. Excellent article. I agree that federal and provincial policies must radically change towards joint partnerships in the governance of land and resources.

  2. There are many questions that now needed to be answered after the decision

    What role remains for BC in governing aboriginal title land?

    If only the Tsilhqot'in can make decisions about the use of the land, in what case would BC have a legitimate reason to infringe their title?

    What is the Tsilhqot'in body that will govern this land? Is it a Xeni Gwet'in First Nations Government (an Indian Act band), The Tsilhqot'in National Government (the tribal council), or something entirely new?

    How will the Tsilhqot'in manage the land? By this I do not mean the day to day details but what will be the form and mechanism of how they will create the laws and regulations to look after the land?

    What legal mechanism will the Tsilhqot'in have to collect any fees, rents or taxes due to them from the land?

    Does the decision give the Tsilhqot'in aboriginal self government that is constitutionally protected? The decision makes it clear that the title is collectively owned by the Tsilhqot'in and that the Tsilhqot'in have the power to make the decisions related to land use. A collective that makes decisions has to have a governance structure, so does this mean the decision also found a right to self governance?

    If there is a dispute on Tsilhqot'in land, what court will be able to hear the case?

    What is the status of the existing Xeni Gwet'in Indian Reserves in the area? They were specifically excluded from the case but lie at the heart of the Tsilhqot'in lands.

    The original 2007 BC Supreme Court case and the recent Supreme Court of Canada decision only explicitly address forestry tenures, but with the scope of rights aboriginal title has, how can other tenures continue?

    What happens to existing mineral tenures? I honestly have no idea at all.

    What happens to existing water rights? Water rights in BC are based on a system that grants the first right to the water to the person with the first registered water rights. Aboriginal Title land is older than any water rights in BC so it could very well mean existing water rights become secondary to the aboriginal water rights

    What happens to provincial parks that are now Tsilhqot'in land?

    Were fee simple lands included in Tsilhqot'in lands? This was not discussed by the Supreme Court of Canada. The original BC Supreme Court decision seems to say that fee simple lands did not extinguish aboriginal title but did not say if there was aboriginal title or not.