Supreme Court of Canada’s historic Tsilhqot’in decision

VANCOUVER — A landmark ruling from the Supreme Court of Canada has granted aboriginal title to a 1,750 sq. km swath of land in central B.C. to the Tsilhqot’in First Nation, the first time aboriginal title has been declared in the country.

The 8–0 decision announced June 26 is a thorough document penned by Supreme Court Chief Justice Beverley McLachlin. It not only ruled on the specifics of the case at hand, but outlined exactly how aboriginal title should be determined and what it means.

The result is a path forward for unresolved aboriginal land claims across Canada and a definition of what rights and responsibilities a declaration of aboriginal title carries. These rights include control over resource development: the Supreme Court has ruled that, where aboriginal title exists, projects cannot normally go ahead without aboriginal consent.

“They have to recognize us as a third layer of government and have to deal with us accordingly,” said Joe Alphonse, a tribal chairman of the Tsilhqot’in National Government. “If they want big projects, they are going to have to come through our doors, work with us.”

The court also said that where aboriginal title is asserted but not yet established — that is, for all unresolved land claims — aboriginal groups must be consulted and given a degree of control consistent with the strength of their title claim. As such governments and resource developers in B.C. and Canada more broadly cannot push resource projects through before the pending rush of aboriginal title cases are heard. If a case is pending, the concept is already in play.

“This decision means we now have the opportunity to settle, once and for all, the so-called ‘Indian land question’ in B.C. and elsewhere in Canada where aboriginal title exists through good-faith negotiations,” Assembly of First Nations Regional Chief for B.C. Jody Wilson-Raybould said. “This decision is the wake-up call the government needs, and the Prime Minister must now take seriously First Nations’ solutions and proposals aimed at reconciliation.”

The question put to the Supreme Court arose more than 30 years ago, when the B.C. government granted a commercial logging licence on lands the Tsilhqot’in considered part of their traditional territory. The band objected, talks reached an impasse, and by 1997 the Tsilhqot’in filed suit against the B.C. government to prevent the logging licence, and establish title to the area.

The idea of title was not new. The Supreme Court of Canada first suggested the potential for aboriginal title in 1973. In 1982 the idea was grounded in the new Canadian constitution with the addition of the aboriginal rights section, known as Section 35. Together they validated the concept, but neither document gave any direction as to how to make title declarations.

Defining what the concept meant in practice required a test case, which is where the Tsilhqot’in entered the picture. The Nation’s opposition to commercial logging on lands they claimed as theirs hit at the heart of the issue by asking: How do we decide if aboriginal title exists and, if it does exist, what rights does it endow?

In 2002 B.C. Supreme Court Justice David Vickers heard the case in a task that took more than five years, included 339 court days and saw him spend much time in central B.C. assessing the Tsilhqot’in’s history and role in the land in question.

To establish aboriginal title Vickers had to find the Tsilhqot’in occupied the land before Europeans arrived, that they had inhabited it continuously and sufficiently since then, and that their control over it was ­exclusive.

Vickers came to one conclusion on these questions. His decision was overturned on appeal. The battle turned on the issue of “sufficient” occupation.

Vickers ruled that the Tsilhqot’in had established aboriginal title to about half of the claim area. It was notable because Vickers did not limit title to areas with clear archeological evidence of sustained habitation, such as village sites. Instead he also acknowledged title to larger territories the Nation had historically used for hunting, fishing and other activities.

In defending his decision Vickers noted the Tsilhqot’in have historically been semi-nomadic, which means they established few of the permanent encampments previous courts had required as evidence of sufficient occupancy. In fact, he said such a structure would limit aboriginal title to postage stamp claims, which ran counter to the concept.

However, Vickers was unable to actually grant a declaration of title because of procedural issues with how the case was pleaded.

Regardless, the B.C. and federal governments appealed the decision. In 2007 they won: the appeal court overturned Vickers’ notion of aboriginal title, reverting to the site-specific concept.

Now the Supreme Court of Canada has decided Vickers was right all along.

“What is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the aboriginal group in question — its laws, practices, size, technological ability and the character of the land claimed — and the common-law notion of possession as a basis for title,” McLachlin wrote in the decision. “A culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is sufficient use to ground aboriginal title.”

First Nations in B.C. and across the country reacted with joy and satisfaction.

“The Supreme Court of Canada’s ruling ends a long history of denial and sets the stage for recognition of aboriginal title in its full form,” the Tsilhqot’in Nation said in a statement. “Rejecting the B.C. Court of Appeal’s impoverished view of title as specific, intensely used sites is a step towards true and lasting reconciliation for all First Nations.”

After outlining the tests to determine title, McLachlin then turned to what title means.

“Aboriginal title confers ownership rights similar to those associated with fee simple, including the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess the land, the right to the economic benefits of the land and the right to proactively use and manage the land,” she wrote. “The right to control the land conferred by aboriginal title means that government and others seeking to use the land must obtain the consent of the aboriginal titleholders.”

McLachlin then pointed out two important restrictions.

One is that aboriginal title is collective, held not only for the present generation but for all succeeding ones. As such decisions should ensure that future generations can use, enjoy and benefit from the territory.

The second is that title does not mean absolute control. Economic development can still proceed on titled land without Aboriginal consent if the government can prove the development is involves a “compelling and substantial public interest”.

The government would also have to prove proportional impact: that adverse effects on Aboriginals would not outweigh the benefits the project would provide to the broader population.

By outlining how to determine title and what title means, the ruling marks the beginning of a new era for aboriginal groups in Canada, one where land-claim negotiations have a solid foundation.

“It only took 150 years, but we look fo
rward to a much brighter future,” said Stewart Phillip, president of the Union of B.C. Indian Chiefs. “This without question will establish a solid platform for genuine reconciliation to take place in B.C.”

The ruling is broad, but it does not change aboriginal land rights everywhere. Throughout much of Canada, aboriginal groups and governments signed treaties that saw the former give up claims to land in exchange for reservations and other promises. These treaties supersede this new decision — if a treaty has been signed, it stands.

Where the ruling applies is to unresolved land claims across Canada. The biggest impact will be felt in B.C., where there are hundreds of unresolved claims that blanket much of the province. But there are also similar areas in the Maritime provinces, as well as parts of southern Ontario and large parts of Quebec.

In these areas, the resource game has changed. The ruling means developers have to obtain consent from aboriginal groups, many of whom say they are ready to talk.

“This decision will bring much needed certainty for First Nations, government and industry,” Alphonse said. “We are ready to move forward in this new relationship with government and industry. That work starts today.”