Effects of Supreme Court’s Tsilhqot’in First Nation ruling

The court’s decision has now clarified the test for a semi-nomadic indigenous group to establish aboriginal title under Canadian law. This is of major significance in British Columbia, Quebec and the Maritimes, which, unlike other Canadian provinces, did not have aboriginal title extinguished through historical or modern treaties, except for some parts of their territory. In its decision, the Supreme Court of Canada held that:

• The test for aboriginal title is based on sufficient, continuous and exclusive occupation prior to the assertion of European sovereignty;
• The concepts of occupation must be analyzed in a culturally sensitive way that looks at both the common law requirements as well as the perspective of the aboriginal group. An aboriginal group will not be required to demonstrate specific, intensive occupation of the entire claim area in order to establish aboriginal title;
• Aboriginal title confers ownership rights similar to those associated with private property held in fee simple, but as a collective title it must be held for future generations. Aboriginal title lands cannot be transferred or encumbered in a way that would prevent future generations from using them, and the lands may be put to modern economic uses.

Consultation and development on aboriginal title lands

The Crown cannot authorize development on aboriginal title lands without First Nation consent unless:

• It has discharged its duty to consult the First Nation;
• It demonstrates a compelling and substantial public purpose for development;
• The incursion on aboriginal title is justified under s. 35 of the Constitution Act, 1982 and meets the Crown’s fiduciary duty. An incursion on aboriginal title that would deprive future generations of the benefit of the land cannot be justified.

The Crown must continue to discharge its duty to consult on lands where aboriginal title is claimed, but not yet proven, as it did before this decision.

Provincial laws of general application

Generally, provincial laws will apply to lands held under aboriginal title, but such laws are subject to important constitutional limits. Any provincial law that interferes with aboriginal title must be backed by a compelling and substantial objective and be consistent with the Crown’s fiduciary duty to the First Nation. Examples could include laws aimed at protecting the environment or ensuring the continued health of forests.

In this case the British Columbia Forests Act applied to the lands up until aboriginal title was declared, but not afterwards. The court noted that it was open to the province to amend the legislation to have it apply to aboriginal title lands, provided that the applicable constitutional limitations were observed.

Future implications of the decision

• First Nations with unresolved aboriginal title claims can be expected to rely on this decision in opposing resource development and pipeline projects even though the Crown’s duty to consult with First Nations that have asserted but unproven aboriginal title claims appears to remain unchanged;
• Proving claims to aboriginal title will remain a lengthy and involved process as evidenced by the nearly five-year trial that led to the Supreme Court of Canada’s decision in this case;
• In the provinces where parts of their territories are not covered by historical and modern treaties, the Crown and industry will need to reassess development in areas that are subject to strong aboriginal title claims, even where approvals have already been granted given the risk that such lands could be removed from provincial jurisdiction in the future;
• It will remain important to distinguish between the circumstances of unresolved aboriginal title in British Columbia that led to this case and those of First Nations in other parts of Canada whose aboriginal title claims have been previously extinguished by treaty.

The authors wish to thank Andréane Giguère, articling student, for her help in preparing this legal update.