The Supreme Court of Canada Grants Aboriginal Title

The Supreme Court of Canada has recently issued a landmark decision concerning Aboriginal title, the obligations of federal and provincial governments, and the ability of those governments to override Aboriginal title. Although rooted in British Columbia’s unique situation and on facts that differ from the status quo in Saskatchewan and the other Prairie provinces, this decision breaks new ground. In Tsilhqot’in Nation v British Columbia, the Court unanimously recognized the Aboriginal title of the Tsilhqot’in, which is the first successful claim in Canada.

This is an important decision for two reasons. First, this is the first time that a court has granted Aboriginal title, so this decision amounts to a crossing of the Rubicon, whereby one can foresee future recognition of Aboriginal title by the courts. Second, the Court also addressed a number of procedural issues that are likely to have general application across the country as governments increasingly deal with unsettled or contested claims of Aboriginal rights. While the first issue appears to have less significance in Saskatchewan and the other Prairie provinces (which are covered by the historic numbered treaties that stand for the extinguishment of Aboriginal title, unlike the situation in British Columbia), the procedural issues addressed by the Court are likely to be of particular interest for (among others) natural resource project proponents.

This case has its genesis in 1983, when British Columbia granted a lumber company forest licenses to cut timber in territory claimed by the Tsilhqot’in. In reaching its decision, the Supreme Court made several important rulings around Aboriginal title claims: The Court issued guidelines around pleadings in Aboriginal land claim cases; set out the test for establishing Aboriginal title; outlined the rights conferred by Aboriginal title; and explained the applicability of provincial laws to areas with Aboriginal title.

In this case, the Court concluded that the trial judge was correct in his assessment that the Tsilhqot’in had established Aboriginal title over the claim area. Having done so, the Supreme Court then characterized what Aboriginal title means and explained the steps that a government must undertake to justify infringing on this title: The government must discharge its procedural duty to consult and accommodate; its actions must be backed by a compelling and substantial objective; and action must recognize the fiduciary obligation to the group.

The duty to consult requires a degree of consultation and accommodation that lies along a spectrum: The level of consultation and accommodation is proportionate to the strength of the claim and to the seriousness of the adverse impact on the claimed right. The compelling and substantial objective, the Court suggested, may include the general economic development of agriculture, forestry, mining, its necessary infrastructure, and the expansion of non-Aboriginal populations. However, if a compelling and substantial public purpose is established, the government must show that the proposed incursion on the Aboriginal right is consistent with the Crown’s fiduciary duty toward Aboriginal people.

Perhaps the most interesting part of this decision for Saskatchewan and the other Prairie provinces where Aboriginal title is thought to be settled, is the Court’s discussion about laws of general applicability on land covered by Aboriginal title. The Court found that provincial laws of general application will apply to territory covered by Aboriginal title, with two exceptions. First the law must actually be of general application and written in such a way so as to cover territory covered by Aboriginal title (British Columbia’s Forest Act only contemplated Crown land, which the Court found is not synonymous with land covered by Aboriginal title). The second requirement is that the law not infringe on Aboriginal rights protected by Section 35 of the Constitution Act, 1982.

The roadmap provided by the Court in Tsilhqot’in is sure to prove helpful in explaining the requirements for governments to pursue public policy objectives (including economic and natural resource development) in areas with unsettled or contested Aboriginal title or rights.

Tsilhqot’in Nation v British Columbia, 2014 SCC 44.