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Supreme Court Decision on Aboriginal Title Raises Questions for Resource Development

By Wally Braul, Radha D. Curpen, E. Bruce Mellett, Jessica E. Mathewson and Brian Monaco

On June 26, 2014, the Supreme Court of Canada delivered a unanimous decision in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (also known as the William decision). It is a long anticipated decision on two significant issues affecting Aboriginal title and provincial jurisdiction over those lands.

First, the Supreme Court granted the Tsilhqot’in First Nation a declaration of title over the non-treaty claimed lands, clarifying that the test to establish Aboriginal title requires sufficient, continuous (where present occupation is relied on) and exclusive occupation of the land claimed.

Secondly, the Court confirmed that even where Aboriginal title is established, provincial laws may continue to apply, subject to considerations of justified infringement under s. 35 of the Constitution Act, 1982.

The decision poses many implications for development activities in British Columbia and elsewhere and clarifies the test for Aboriginal title.

Background

The civil action claim asserted by the Tsilhqot’in First Nation was commenced more than 20 years ago, involving lands in Central British Columbia west of Williams Lake. At a lengthy hearing of 339 days, the key issue was whether the Tsilhqot’in First Nation was entitled to Aboriginal title to all or part of the Claim Area. The trial judge found that because the Tsilhqot’in asserted an “all or nothing” title claim, a declaration of title could not be granted, as they exclusively occupied some areas but not others. The findings were without prejudice to the Tsilhqot’in First Nation’s ability to pursue specific title claims at a later date.

The trial judge also held that, to the extent Aboriginal title was established, British Columbia no longer had jurisdiction under the Forests Act and related legislation to grant harvesting rights and other authorizations, under the doctrine of interjurisdictional immunity.

The key difference between the lower court decisions was the extent to which the First Nation claimants need to establish continuous and exclusive occupation over defined areas of land. The trial decision, recognizing the nomadic nature of this First Nation’s existence over time and the seasonal aspects of some of the land’s uses, adopted what was considered a more flexible approach to the test for establishing Aboriginal title. By contrast, the B.C. Court of Appeal suggested the test required a higher threshold of continuous and exclusive physical occupancy of defined areas in order to prove a claim, describing the requirement as “intensive presence at a particular site”. It explicitly rejected a broad “territorial” approach to Aboriginal title, finding it would be “antithetical to the goal of reconciliation”.

The Decision of the Supreme Court of Canada

Aboriginal Title

The Supreme Court favoured the trial decision’s reasoning and granted the declaration of Aboriginal title to the broader territory asserted by the Tsilhqot’in. As did the trial judge, the Supreme Court clarified the test set out in its 1997 Delgamuukw ruling, which held that Aboriginal title can be found if the Aboriginal group proves sufficient, continuous, and exclusive occupation. Sufficiency entails regular use of territories. Continuity is relevant when present occupation is relied on as proof of pre-sovereignty occupation. Exclusivity involves an intention and capacity to control the land.

The Supreme Court’s approach highlighted how the characteristics of the particular claimant group and the land claimed could affect the existence of title. Despite post-Delgamuukw jurisprudence suggesting the need for a site-specific approach to determining “Aboriginal Rights”, the Supreme Court preferred a broad “territorial” approach to determining title.

The Supreme Court clarified that Aboriginal title is an independent, beneficial legal interest, giving rise to a fiduciary duty on the part of the Crown. A declaration of Aboriginal title confers the right to use and control the land and to reap the benefits flowing from its resources. It allows for the use of the land in a way that benefits the collective as a whole, including future generations.

Significantly, development on Aboriginal title lands requires the title holders’ consent. If such consent is not granted, the government must show that the proposed incursion on the land is justified. The Supreme Court went on to cite its Delgamuukw decision, which articulated that development activities, including agriculture, forestry, mining and hydroelectric power could be justifiable infringements of Aboriginal title.

Applicability of Provincial Regulation

The Supreme Court ruled that provinces may still regulate land use for Aboriginal title land, but are limited by s. 35 of the Constitution Act, 1982, which requires governments to have a compelling and substantive objective and to act according to the fiduciary duty they owe to Aboriginal people, as set out in Sparrow.

General regulatory legislation will often pass the Sparrow test, which looks at the following factors: whether the limitation imposed by the legislation is unreasonable; whether the legislation imposes undue hardship; and whether the legislation denies the holders the preferred means of exercising their right. Legislation that confers property rights is less likely to pass the Sparrow test.

The Supreme Court determined interjurisdictional immunity, as considered by the Court of Appeal, does not apply in this case because Aboriginal title affects both provincial and federal powers.

Implications

The Supreme Court’s decision will create challenges for governments and proponents seeking to authorize development projects on Aboriginal lands. It clarifies, if not introduces, a significant new type of leverage – focusing on property rights – available to Aboriginal groups. Future Aboriginal litigation may increasingly be about proving title, as opposed to alleged deficiencies over the adequacy of consultation.

The decision may reduce certainty about resource projects in areas of the country where Aboriginal title is or could become an issue, which includes almost all of British Columbia, much of Atlantic Canada, parts of Ontario and Québec and some of the North. The decision will also be attractive for those First Nations who assert that treaties did not extinguish title but were merely peace treaties.

The Supreme Court’s suggestion that projects approved by the Crown before the declaration of title may need to be reassessed or even cancelled once title is declared could raise potential concerns over some projects in Canada.

Justification for infringing Aboriginal title will arguably require more proactive attention by the Crown. That is, the federal and provincial governments will need to adopt a more systematic approach to consulting with Aboriginal groups (as opposed to merely delegating consultation to proponents) and rationalizing any infringement in a transparent and principled way.

The decision also raises the question of how Aboriginal title will be proven going forward. This decision was a result of a very long and expensive civil action. Will the courts continue to require that title be proven only in a civil action, or can it proven in, for example, a judicial review or a tribunal proceeding? And, will the Crown, to discharge its duty of honour after this decision, create processes that provide timely opportunities for determining Aboriginal title?

Finally, that the provinces can continue to regulate land subject to Aboriginal title claims and title determinations should be a welcome relief to many and will allow for consistent regulation across each province.

Wally Braul

Energy Industry Environmental and Aboriginal Law Lawyer at Bennett Jones LLP
Wally Braul is co-head of the Aboriginal law practice. He has a regulatory practice focused on assisting energy industry clients with environmental and aboriginal law matters.

Radha Curpen

Environmental, Aboriginal and Regulatory Lawyer at Bennett Jones LLP
Radha Curpen is co-head of the Aboriginal law practice. Specializing in environmental, aboriginal, regulatory matters, and the transportation of dangerous goods (including transportation of crude oil by rail), Radha assists clients with regulatory compliance, the management of environmental risks and the defence of environmental litigation, the avoidance and defence of environmental related prosecutions, and crisis prevention and management.

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    Bruce Mellett

    Energy, Insurance, Professional Liability and Construction Litigation Lawyer at Bennett Jones LLP
    Leader of the energy litigation practice group, Bruce Mellett's commercial litigation practice includes experience in energy related disputes, insurance issues, professional liability and construction matters. Among the areas where Bruce has provided advice are contract disputes involving royalty issues, ROFR clauses and product liability issues.

    Jessica Mathewson

    Commercial Litigation Lawyer at Bennett Jones LLP
    Jessica has a general litigation practice, with a particular interest in regulatory and environmental law. She has experience acting on behalf of clients in various corporate-commercial disputes, including breach of contract, fraud, and competition matters and has appeared before the Ontario Superior Court of Justice and the Human Rights Tribunal. Jessica advises clients on regulatory issues, including occupational health and safety, transportation of dangerous goods, environmental and Aboriginal law. She also defends clients charged under the Occupational Health and Safety Act and various environmental legislation.

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      Brian Monaco

      Student-at-Law at Bennett Jones LLP
      Brian Monaco is an articling student in the Calgary office of Bennett Jones.

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