Revisiting Aboriginal Title Part III: SCC Clarification in Tsilhqot’in Nation v British Columbia
This comment is the third in a series detailing the ongoing development of Aboriginal title in Canada. Part I and Part II focused on the British Columbia Court of Appeal decision William v British Columbia, 2012 BCCA 285 [William]. This third part aims to provide an exegesis and analysis of the Supreme Court’s resolution of the appeal from William in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in]. Any errors or omissions are solely the responsibility of the author.
On Thursday, the SCC released Tsilhqot’in Nation v British Columbia, 2014 SCC 44 [Tsilhqot’in]. This important case, the conclusion of a 30-year legal dispute, now represents the latest and most comprehensive statement of the law of Aboriginal title in Canada. It is also the first successful Aboriginal title claim. By recognizing and affirming the Tsilqot’in Nation’s title to over 1700 square kilometres of territory, the SCC has given full effect to the words of section 35 of the Constitution Act, 1982.
This comment will summarize the legal impact of Tsilhqot’in. It will set out (i) the central issues faced by the SCC, (ii) the answers provided in the judgment, and (iii) the questions that persist. It does not aim to be conclusive, but a springboard for discussion.
The Central Issues
The issues faced and dealt with by the SCC in Tsilhqot’in can be grouped into questions about the doctrine, content, and scope of Aboriginal title. They can be loosely stated as follows:
(1) How should a court determine whether an indigenous group has title to claimed lands? (questions of doctrine);
(2) What rights does a finding of Aboriginal title confer? And, as a corollary, what are the corresponding duties of the Crown associated with such a finding? (questions of content);
(3) In what ways, if any, are the rights and duties in (2) limited? (questions of scope).
These questions and answers are all importantly linked. Issue (1) asks about Aboriginal title’s basic doctrinal framework. That is, the SCC had to set out both (i) the correct jurisprudential test(s) for making out a title claim, and (ii) the correct method by which a judge must apply those tests. Having answered (1), the Court turned to (2), and asked what benefits and burdens are associated with a claim that satisfies the doctrinal framework given by (1)? Finally, in (3), the Court detailed how the rights and duties in (2) can be limited.
Doctrinal Questions and Answers
The basic formal framework for title claims came out of Delgamuukw, in which Lamer CJC held that a successful title claim will be one that demonstrates sufficient, continuous, and exclusive pre-sovereignty occupation of land (Delgamuukw, para 143). This framework, though ostensibly straightforward, was subject to a variety of divergent interpretations in the lower courts. That is, courts disagreed about what standard of sufficiency, continuity, or exclusivity was required to satisfy the Delgamuukw test. In fact, the primary issue in Williams was itself a disagreement about what sufficient occupancy for title demanded (see Part I).
Tsilhqot’in helps to clarify the doctrine. Writing for a unanimous court, McLachlin CJC affirmed and developed the Delgamuukw framework by explicitly setting out what each element of the test contemplates and requires. As the central issue in the appeal, the element of sufficiency was given the most treatment and developed extensively. The other two, exclusivity and continuity, remain largely unchanged and will not be discussed here.
Interestingly, the Chief Justice parses sufficiency in terms of what the claimant group’s acts of occupancy could be said to convey: “To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes” (Tsilhqot’in, para 38).
It seems that genuine sufficient occupancy is occupation that could act as a kind of signalling device to others, demonstrating the claimant group’s interest in the land. This signal would be sent via “evidence of strong presence on or over the land claimed, manifesting in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, or was controlled by, or was under the exclusive stewardship of the claimant group” (para 38). The general test for sufficient occupancy, on this account, is whether or not a group’s acts of occupation would communicate or signal to others the group’s control of the land.
McLachlin CJC stresses that this test is context-specific; sufficient occupancy can be established in a variety of ways (para 37). There is no paradigmatic communicative act of occupation which will satisfy the sufficient occupancy requirement. Rather, the court must consider a variety of factors, adopting a “culturally sensitive approach” which is based on both the Aboriginal perspective (including the group’s size, resources, abilities, and the nature of the land) and the common law notions of possession and occupancy. Whether or not some occupation can satisfactorily signal a group’s holding of the land will be contingent on and vary with the claim’s context.
Finally, the Chief Justice explicitly rejects the BCCA’s site-specific test for sufficient occupancy, writing that “there is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held” (para 42). Instead, McLachlin CJC affirms the regular use model that the trial judge adopted (at para 50). Title is not limited to clearly drawn, intensely used areas. Rather, it can be established over areas of regular resource use, such as hunting, fishing, and trapping, provided that the use, on the facts, “evinces an intention” on the part of the group to possess the land comparable to what would ground common law title (at para 42).
The Court has provided a test that construes the occupancy requirement of title widely, in a manner sensitive to the group’s way of life and particular historical circumstances. Provided that an Aboriginal group can demonstrate acts of occupancy that, all things considered, would be regular and capable of communicating the group’s interest in the land, an important portion of the overall test for title can be made out. In rejecting the BCCA’s standard and developing the trial judge’s interpretation, the SCC made the recognition and affirmation of title open to all of the historic Aboriginal ways of life, including nomadic and semi-nomadic peoples–not just those groups who settled and intensely used specific areas.
Applying this newly-clarified standard, the Court was satisfied that the factual occupancy found by the trial judge was sufficient to ground title: “While the population was small, the trial judge found evidence that the parts of the land to which he found title were regularly used by the Tsilhqot’in” (para 55).
In addition to the conceptual clarification around the title test, the Court also provided practical direction for other courts as to how to go about applying this test and determining occupancy, affirming that the trial judge’s method of application was correct. The trial judge divided the Claim Area into manageable sections, and, relying on archaeological evidence, as well as historical and oral evidence from Aboriginal elders, then determined whether individual sites in each of these sections were occupied sufficiently. Proceeding in this careful, piecemeal manner, Vickers J was able to construct the overall boundaries of title eligible land. Proceeding in this way, he made no legal error (para 63). The SCC’s affirmation of this method provides a template for courts adjudicating future title claims.
Rights and Duties – The Content of Title
We turn next to the content of title, or the question of what rights and correlative duties are associated with title. The Court in Tsilhqot’in is explicit in setting out the source and content of these rights.
McLachlin CJC affirms that Aboriginal title is a sui generis right – that is, it is a unique interest, a product of the historic relationship between the Crown and the claimant Aboriginal group, with incidents that cannot be wholly explained by reference to either the common law or Aboriginal traditions (Tsilhqot’in, para 72; Delgamuukw, para 112). This unique, hybridized source gives it unique content: though it is similar to some proprietary concepts like fee simple, which have the common law as their source, it is importantly distinct from them.
The Chief Justice then sets out the incidents or rights associated with title. Like fee simple, it includes the ownership rights of (i) the right to decide how to decide how the land will be used — in modern or traditional ways; (ii) the right of enjoyment and occupancy of the land; (iii) the right to possess the land; (iv) the right to the economic benefits of the land; (v) the right to proactively use and manage the land (Tsilhqot’in, para 73).
However, unlike fee simple, it is timelessly and collectively held: it is collective title held not only for the present generation but for all succeeding generations. Therefore, it is restricted in two ways: (i) alienation (transfer or sale) is limited to the Crown and (ii) it cannot be used in a way that would prevent future generations from enjoying the substantial benefit of the land (para 74).
Therefore, title is a form of collective, timeless ownership with some limitations on alienation and use, which flow from the unique historical relationship that gives rise to it.
Importantly, the Court also clarifies what Crown duties are grounded by the incidents above. The Crown no longer enjoys a beneficial interest in the land to which it retains an underlying title. Additionally, the Court affirms its earlier findings that the Crown has a fiduciary duty when dealing with Aboriginal lands: they must prioritize Aboriginal interests over other considerations in such dealings.
Furthermore, and perhaps more significantly, the incidents of title which allow for Aboriginal control over the land ground a new requirement: “governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” (para 76, emphasis added). With this, the Court insulates title lands from incursions that are not agreed to by title-holding groups. This insulation gives Aboriginal groups meaningful autonomy over title lands. The consent requirement, powerful in its own right, is subject only to one qualification – a potential justification of infringement, to be discussed in below.
Finally, even before title is found, the Crown has a procedural duty to consult with and, in some instances, accommodate potential claimants if the Crown has real or constructive knowledge of a potential title claim and if its activities may adversely affect the land in question (para 78). Importantly, if this duty is not adequately discharged, the government decision can be suspended or quashed.
Incursion Justifications under Section 35: The Scope of Title and Associated Duties
So, moving forward, the Crown must obtain consent of title-holding groups, like the Tsilhqot’in, if they wish to use titled land. This is subject to one caveat: a justificatory mechanism by which it is possible for the Crown to demonstrate that a proposed government action is consistent with section 35 of the Constitution Act, 1982.
Similar in function (and to some extent, form) to section 1 of the Charter, the Crown can justifiably undertake actions which intrude on titled land without consent, if they meet the following test under section 35, under which the government must show that:
(1) It discharged its procedural duty to consult and accommodate;
(2) Its actions were backed by a compelling and substantial objective;
(3) The actions are consistent with the Crown’s fiduciary obligation to the group.
The Court spends some time fleshing out what each of these requirements entail. For the purposes of this overview, it is sufficient to make a few small points.
First, requirement (2), though it bears some resemblance to the first stage of a Charter section 1 analysis, is indexed to Aboriginal rights: to be compelling and substantial, the broader public goal asserted by the government must further the goal of reconciliation, from the perspective of both the Aboriginal group and the broader public (paras 81-82). McLachlin then affirms the examples of potentially compelling objectives given in Delgamuukw which include protection of the environment, development of infrastructure and settlements, and perhaps most significantly, the general economic development of the interior of British Columbia. On its face, this last potentially compelling reason may mean that certain government-awarded energy or resource contracts could be found consistent with the demands of section 35.
Second, requirement (3) imports two considerations. First, to be consistent with the Crown’s fiduciary duty, proposed incursions must be forward looking — they must be cognizant of their duty to all future generations, and incursions “cannot be justified if they would substantially deprive future generations of the benefit of the land” (para 86). Second, the Court holds that the fiduciary duty entails an “obligation of proportionality” similar in structure to that of section 1 (para 87).
So, like the rights guaranteed in the Charter, the incidents of Aboriginal title are not absolute – they can be justifiably limited in certain instances, where that limitation would serve the overall goal of reconciling Aboriginal and broader third party interests. However, like s 1, the Crown bears a heavy burden to justify incursion. This further strengthens the protection of titular rights which, after this case, are now clearly recognized.
Conclusion: Some Lingering Questions
We now know much more about Aboriginal title after Tsilhqot’in. We know, doctrinally, what title requires a claimant group to prove, and how a court must apply the appropriate tests. We also know precisely what rights or incidents title grants to successful groups, and what duties are imposed on the Crown and third parties in light of those rights. Furthermore, and perhaps more significantly, the Tsilhqot’in Nation’s victory gives other Aboriginal groups a valuable blueprint of how their own legitimate interests in land can be constitutionally recognized and affirmed. Tsilhqot’in opens the door to further meaningful — and long overdue — reconciliation of Aboriginal peoples and other Canadians.
However, there are still some things we do not know. We don’t yet know what might count as a compelling and substantial reason for incursion on recognized title. For instance, we don’t know whether “the general economic development” of British Columbia’s interior might licence the building of a pipeline, or further deforestation. What we do know, however, is that the question of whether such action respects the constitutional rights of Aboriginal peoples will — indeed, must — be asked. And that, I think, is a start.