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.
