Just as we were preparing the final touches to this issue of LawNow, my editorial assistant reminded me that we did not have a Viewpoint column. Perhaps I can blame the lead-up to summer time that this omission had slipped my notice. However, we were handed a gift by the Supreme Court of Canada on June 26, 2014. It released a landmark decision – historic and full of import for Canada – one that fits well into the theme for this issue. The theme is called Bench Marks: Cases that Change the Legal Landscape. And, the case is about Aboriginal Law, the focus of our Special Report. The Court’s decision neatly encapsulates the ideas we are exploring in this issue.
The case is called Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.
The unanimous judgment was delivered by Chief Justice Beverley McLachlin. The plaintiff, the Tsilhqot’in Nation, is a group of six bands with a common culture and history that live in a beautiful, remote valley bounded by rivers and mountains in central British Columbia. The Nation has never signed a treaty with the Crown and has always regarded the land as theirs. When the Province of British Columbia granted a forestry company logging rights on the land, the Nation sought a declaration prohibiting commercial logging and asked for aboriginal title on behalf of its people. After a very lengthy trial, a British Columbia Supreme Court judge agreed that the Tsilhqot’in were, in principle, entitled to their claim. The British Columbia Court of Appeal overturned that decision, and an appeal to the Supreme Court of Canada ensued.
The Supreme Court of Canada was asked to answer: what is the test for Aboriginal title to land, and if title is established, what rights does it confer? The Supreme Court ruled that aboriginal title flows from occupation of the land, in the sense of regular and exclusive use, which must be sufficient, continuous and exclusive. “Sufficient occupation” looks at aboriginal culture and practices and compares this in a culturally sensitive way to what is necessary to establish title in common law. Occupation includes sites of settlement as well as tracts of land regularly used for hunting and fishing. The Court found that the evidence accepted by the trial judge established the Tsilhqot’in claim to aboriginal title.
What rights does this finding of title confer? The Court wrote: “The nature of Aboriginal Title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land for future generations”.
The Court set out what governments must do in their dealings with First Nations. Governments are already required to consult in good faith with aboriginal groups asserting title about proposed uses, and accommodate their interests. Now, the Court wrote: “Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and also must be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group. Governments must justify any incursions on Aboriginal title lands by ensuring that the proposed action meets the requirements of s. 35 of the Constitution Act 1982. That section recognizes and confirms the aboriginal and treaty rights of the aboriginal peoples of Canada. Governments must demonstrate a compelling and substantive government objective that goes no further than necessary to achieve their goals and the benefits that flow from the incursion must not outweigh harm to aboriginal interests.
The import of this decision can hardly be understated. This decision marks the first time that a court has recognized aboriginal title to a specific piece of land. First Nations people still own their ancestral land if they have not signed a treaty with the Crown, and governments must respect that ownership. Going forward, the implications for natural resources-based industries and projects such as the Northern Gateway Pipeline are huge. Bob Rae, the chief negotiator on the Ring of Fire project in Ontario said: “Fundamentally, what the Court is saying is that governments and companies have to take aboriginal rights seriously.”
The ramifications of this decision will be felt across the country. Besides B.C. there are many places in Canada where treaties are not in place. One aboriginal rights lawyer is quoted as saying that the ruling could apply to as much as 40% of Quebec’s territory. The “Peace and Friendship” treaties entered into between aboriginal groups and the Crown in the Maritime Provinces have already been found by the Supreme Court of Canada as insufficient to settle ownership of unceded land.
This decision has the potential to fundamentally change the relationship between aboriginal and non-aboriginal Canadians. It has the potential to determine the development of our resource-based economy. It could shift the balance of power and negotiating strengths between governments and First Nations. It could spell a whole new world for aboriginal peoples. A Bench Mark case indeed!
About Teresa Mitchell
