Commentary: Canada’s first finding of aboriginal title – Tsilhqot’in Nation v. BC

On June 26, 2014, the Supreme Court of Canada (SCC) granted the appeal of the Tsilhqot’in Nation, confirming their aboriginal title over tracts of Crown land in B.C.

Until this landmark decision, previous claims of aboriginal title had failed to meet the stringent test set out in the SCC’s 1997 decision in Delgamuukw for aboriginal title to lands: the aboriginal claimant must demonstrate that their occupation of the lands before sovereignty was sufficient, continuous and exclusive. By demonstrating that the Tsilhqot’in Nation’s semi-nomadic ancestors had hunted, fished and gathered on the lands prior to sovereignty to the exclusion of others and that the Tsilhqot’in Nation continues to use the lands today, the Tsilhqot’in Nation had their right to control such lands assured through a declaration of aboriginal title.

The decision confirms the Crown’s obligation to consult and accommodate Aboriginal interests on such lands and goes further to explain that any development on Aboriginal title lands would be subject to the consent of the aboriginal titleholder. Absent such consent, the Crown can only infringe proven aboriginal title by establishing such use is justified on the basis of the broader public good under Section 35 of the Constitution Act, 1982. The Crown must establish that the infringing use serves a compelling and substantial public interest and is consistent with the Crown’s fiduciary duty to the aboriginal titleholder.

The SCC called for a culturally sensitive approach to assessing title, recognizing the intention and capacity of the Tsilhqot’in Nation to control the area. By confirming a territorial use-based approach to analyzing aboriginal title (i.e., rather than relying on proven use at specific sites), this decision provides important guidance to governments and development proponents: “the court must be careful not to lose or distort the aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty aboriginal interests into equivalent modern legal rights.” 

Concerns over widespread development restrictions resulting from this decision are likely premature. On the issue of what public benefit objectives could justify infringement on aboriginal title, the SCC confirmed its decision in Delgamuukw that the development of agriculture, forestry, mining, hydroelectric power and infrastructure could be compelling and substantial, but would have to be considered on a case-by-case basis.

In this case, the enactment and application of B.C.’s forestry management and harvesting regime to the aboriginal title lands of the Tsilhqot’in Nation failed to meet this test. The findings of the lower court were upheld as to the limited public benefit (economic or ecological) of the forestry regime, and it was determined that undue hardship and denial of rights of the Tsilhqot’in Nation would result. 

What perhaps should be given more attention is the assertion by the SCC that the aboriginal titleholder and any government authorizing development on the lands must ensure that such development does not deprive future aboriginal generations of the control and benefit of the lands. We can expect that the exhaustion of particular resources and the footprint of proposed developments will be given significant scrutiny.

After 20 years in the courts, the success of the Tsilhqot’in Nation in this case has ushered in another important phase of aboriginal rights recognition in Canada and provides important guidance on how the concepts of sufficiency, continuity and exclusivity will be applied to aboriginal title claims across Canada.

Resource development in areas where aboriginal title remains an issue (predominantly B.C. and Eastern Canada, but also parts of Ontario, Quebec and the North) will require enhanced aboriginal engagement, clear public benefit and protection of future aboriginal use.

— Based in Toronto, Alexandria Pike is a partner at the law firm Davies Ward Phillips & Vineberg LLP, specializing in environmental and energy practices. She advises clients on environmental law issues and in matters relating to environmental management and compliance, and provides technical and strategic advice to various industrial sectors including mining and oil and gas.

Sarah Powell is a partner at Davies Ward Phillips & Vineberg in its environmental, aboriginal and energy practices in Toronto. As one of Canada’s leading environmental lawyers, she has extensive experience in all aspects of environmental law, including strategic advice on environmental and social-impact assessments, environmental approvals, energy approvals, contaminated sites, environmental class actions and aboriginal risk assessments. She is past chair of the Environmental Law Section of the Ontario Bar Association, and current chair of the National Environmental, Energy and Resource Law Section of the Canadian Bar Association.

Davies Ward Phillips & Vineberg LLP is an integrated business law firm of 240 lawyers with offices in Toronto, Montreal and New York. For more information, visit www.dwpv.com.