In a unanimous ruling, the Supreme Court of Canada declared that the Tsilhqot’in Nation held Aboriginal title to a remote area of south central British Columbia approximately 1700 sq. kms. in extent. The Court also ruled that upon the declaration of Aboriginal title the Crown lost all beneficial interest in the lands, but, subject to its fiduciary duties to the Aboriginal title holders retained the legislative capacity to regulate land use and to justifiably infringe Aboriginal title.

The Tsilhqot’in Nation consists of six First Nations with a total population of about 3,000 whose reserves and traditional territory are predominantly located on the Chilcotin Plateau in the south central part of British Columbia, west of Williams Lake. In 1989, one of those First Nations, the Xeni Gwet’in (with a population of approximately 400, of whom 200 reside in the Claim Area), launched an action in the British Columbia Supreme Court seeking to enjoin timber harvesting within the band trapline. The case evolved into a claim brought by Roger William, the Chief of the Xeni Gwet’in, on behalf of his First Nation and the Tsilhqot’in Nation for a declaration of Aboriginal title and Aboriginal hunting and trapping rights to an area of approximately 4400 sq. kms.

In November of 2007, following 339 days of trial stretched over 5 years, the trial judge granted the declaration of Aboriginal rights, but dismissed the Aboriginal title claim on the grounds that the claim had been pleaded on an “all or nothing” basis. Because the trial judge was unable to find that the Plaintiff had made out his case to the entire claim area, the declaration of title was refused. The trial judge went on to opine, however, that if the case had been properly pleaded, he would have found Aboriginal title had been proven to approximately 1950 sq. kms., including approximately 250 sq. kms. that were outside of the claimed area. He also expressed the view that if he had been able to make a declaration of Aboriginal title, provincial forestry legislation would not apply.

The Province appealed the Trial judge’s findings on Aboriginal rights, and Roger William appealed the dismissal of his claim to Aboriginal title, arguing that either the whole of the Claim Area qualified as Aboriginal title lands, or, in the alternative, that the areas identified by the Trial Judge were title lands.

The Court of Appeal upheld the finding of Aboriginal rights and the dismissal of the Aboriginal title claim, but on radically different grounds. The Court found that there had been no defect in the pleadings, but that the title claim nevertheless failed on the grounds that it had been argued and presented on the basis of a territorial theory of Aboriginal title rather than the site specific concept of title that the Court found had been endorsed in the Supreme Court of Canada’s decision in R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220. The Court of Appeal found that the trial judge’s opinion area suffered from the same defect.

Chief William appealed to the Supreme Court of Canada for a declaration of Aboriginal title to the 1700 sq. kms. within the Claim Area that the Trial Judge had identified as lands to which he would have found title absent the pleadings issue.

The Chief Justice identified the important questions raised by this appeal as:

[1] What is the test for Aboriginal title to land? If title is established, what rights does it confer? Does the British Columbia Forest Act, R.S.B.C. 1996, c. 157, apply to land covered by Aboriginal title? What are the constitutional constraints on provincial regulation of land under Aboriginal title? Finally, how are broader public interests to be reconciled with the rights conferred by Aboriginal title?

She reviewed the relevant jurisprudence, citing Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, Guerin v. The Queen, [1984] 2 S.C.R. 335; R. v. Sparrow, [1990] 1 S.C.R. 1075; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; and Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, but notably not R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220.

From these cases she derived the following propositions:

  • Radical or underlying Crown title is subject to Aboriginal land interests where they are established.
  • Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits.
  • Governments can infringe Aboriginal rights conferred by Aboriginal title but only where they can justify the infringements on the basis of a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.
  • Resource development on claimed land to which title has not been established requires the government to consult with the claimant Aboriginal group.
  • Governments are under a legal duty to negotiate in good faith to resolve claims to ancestral lands.

Following this review she asked:

[24] How should the courts determine whether a semi-nomadic indigenous group has title to lands? This Court has never directly answered this question. The courts below disagreed on the correct approach. We must now clarify the test.

The Test for Aboriginal Title

The Chief Justice observed that the trial judge had held that title was proven by showing regular and exclusive use of sites or territory, and on that basis, he had concluded that the Tsilhqot’in had established title not only to village sites and areas maintained for the harvesting of roots and berries, but to larger territories which their ancestors used regularly and exclusively for hunting, fishing and other activities. The Court of Appeal, on the other hand, had applied a narrower test for Aboriginal title, requiring an Aboriginal group to prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty.

In that context the Court reviewed the three requirements for Aboriginal title:

[30] … sufficient pre-sovereignty occupation; continuous occupation (where present occupation is relied on); and exclusive historic occupation.

[32] In my view, the concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title. This said, 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.  Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.

Sufficiency of Occupation

The Court recognized that the sufficiency of occupation was the primary question on this appeal.

The Chief Justice reiterated that the question of sufficient occupation had to be approached from both the common law and the Aboriginal perspectives, and that in considering the latter perspective for the purpose of Aboriginal title “one must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed”. She added that

[36] The common law perspective imports the idea of possession and control of the lands. At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.

She melded these two perspectives in a manner that appeared to be considerably more generous to nomadic Aboriginal groups than to more sedentary First Nations:

[37] The intensity and frequency of the use may vary with the characteristics of the Aboriginal group asserting title and the character of the land over which title is asserted. Here, for example, the land, while extensive, was harsh and was capable of supporting only 100 to 1,000 people.  The fact that the Aboriginal group was only about 400 people must be considered in the context of the carrying capacity of the land in determining whether regular use of definite tracts of land is made out.

The Chief Justice then proceeded to set out the particularized test for the proof of sufficiency of occupation:

[38] 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. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic.

In an apparent, but unacknowledged, reversal of views, the Chief Justice endorsed the reasoning of the Nova Scotia Court of Appeal in R. v. Marshall, 2003 NSCA 105, 218 N.S.R. (2d) 78. She cited with approval and added emphasis a portion of the judgement of Cromwell J.A (as he then was) in which he had quoted from Professor Kent McNeil:

Apart from the obvious, such as enclosing, cultivating, mining, building upon, maintaining, and warning trespassers off land, any number of other acts, including cutting trees or grass, fishing in tracts of water, and even perambulation, may be relied upon. The weight given to such acts depends partly on the nature of the land, and the purposes for which it can reasonably be used.

She then added

[40] Cromwell J.A. in Marshall went on to state that this standard is different from the doctrine of constructive possession. The goal is not to attribute possession in the absence of physical acts of occupation, but to define the quality of the physical acts of occupation that demonstrate possession at law (para. 137). He concluded:

I would adopt, in general terms, Professor McNeil’s analysis that the appropriate standard of occupation, from the common law perspective, is the middle ground between the minimal occupation which would permit a person to sue a wrong-doer in trespass and the most onerous standard required to ground title by adverse possession as against a true owner. . . . Where, as here, we are dealing with a large expanse of territory which was not cultivated, acts such as continual, though changing, settlement and wide-ranging use for fishing, hunting and gathering should be given more weight than they would be if dealing with enclosed, cultivated land.  Perhaps most significantly . . . it is impossible to confine the evidence to the very precise spot on which the cutting was done: Pollock and Wright at p. 32. Instead, the question must be whether the acts of occupation in particular areas show that the whole area was occupied by the claimant. [para. 138]

The Chief Justice then added:

[41] In summary, 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. It is not possible to list every indicia of occupation that might apply in a particular case. The common law test for possession—which requires an intention to occupy or hold land for the purposes of the occupant—must be considered alongside the perspective of the Aboriginal group which, depending on its size and manner of living, might conceive of possession of land in a somewhat different manner than did the common law.

[42] 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. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

She dismissed the Province’s argument that R. v. Marshall; R. v. Bernard had rejected a territorial approach to title, and asserted that the Court in that case had merely reiterated the principles laid down in Delgamuukw.

When she turned to the question of whether the requirement of sufficiency had been met in this case, the Chief Justice added:

[55] The evidence in this case supports the trial judge’s conclusion of sufficient occupation. 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. The Court of Appeal did not take serious issue with these findings.

[56] Rather, the Court of Appeal based its rejection of Aboriginal title on the legal proposition that regular use of territory could not ground Aboriginal title—only the regular presence on or intensive occupation of particular tracts would suffice. That view, as discussed earlier, is not supported by the jurisprudence; on the contrary, Delgamuukw affirms a territorial use-based approach to Aboriginal title.

Continuity

The Chief Justice had relatively little to say about the continuity requirement. She appeared to confirm that proof of continuity was only necessary when present day occupation was relied upon to prove pre-sovereignty occupation, and added:

[46] … Continuity simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.  This is a question for the trier of fact in each case.
In applying the continuity requirement to this case the Court noted that:

[57] …  The evidence adduced and later relied on in parts 5-7 of the trial judge’s reasons speak of events that took place as late as 1999.  The trial judge considered this direct evidence of more recent occupation alongside archeological evidence, historical evidence, and oral evidence from Aboriginal elders, all of which indicated a continuous Tsilhqot’in presence in the claim area.  The geographic proximity between sites for which evidence of recent occupation was tendered, and those for which direct evidence of historic occupation existed, further supported an inference of continuous occupation.  …

Exclusivity

With respect to the requirement of exclusivity, the Chief Justice offered the following definition:

[48] Exclusivity should be understood in the sense of intention and capacity to control the land. The fact that other groups or individuals were on the land does not necessarily negate exclusivity of occupation.  Whether a claimant group had the intention and capacity to control the land at the time of sovereignty is a question of fact for the trial judge and depends on various factors such as the characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land in question. Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group.  The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.  Even the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control.

She had no doubt that this requirement had been met:

[58] …  The trial judge found that the Tsilhqot’in, prior to the assertion of sovereignty, repelled other people from their land and demanded permission from outsiders who wished to pass over it.  He concluded from this that the Tsilhqot’in treated the land as exclusively theirs. There is no basis upon which to disturb that finding.

Summary of test for proof of Aboriginal title

The Chief Justice then summarized her conclusions on the test for the proof of Aboriginal title:

[50] The claimant group bears the onus of establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  In asking whether Aboriginal title is established, the general requirements are: (1) “sufficient occupation” of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation.  In determining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

Rights Conferred by a Finding of Aboriginal Title

The Chief Justice reviewed the comments on the nature of Aboriginal title that had been made in Justice Dickson’s concurring judgment in Guerin and by former Chief Justice Lamer’s majority opinion in Delgamuukw and derived a number of conclusions from those sources, including:

[69] …The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.

[71] What remains … of the Crown’s radical or underlying title to lands held under Aboriginal title… [are] two related elements—a fiduciary duty owed by the Crown to Aboriginal people when dealing with Aboriginal lands, and the right to encroach on Aboriginal title if the government can justify this in the broader public interest under s. 35 of the Constitution Act, 1982.

[70] The content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it … Delgamuukw establishes that Aboriginal title gives “the right to exclusive use and occupation of the land . . . for a variety of purposes”, not confined to traditional or “distinctive” uses ….  In other words, Aboriginal title is a beneficial interest in the land ….  In simple terms, the title holders have the right to the benefits associated with the land—to use it, enjoy it and profit from its economic development.  As such, the Crown does not retain a beneficial interest in Aboriginal title land.

Limits on Aboriginal title

The Chief Justice re-iterated the concept of an internal limit inherent in Aboriginal title, but with an apparent shift in emphasis on the content of the limit.  In Delgamuukw, former Chief Justice Lamer had stated that:

[128] … lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place. … For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot).

The proscription against uses that were incompatible with the past relationship between the title holders and the land was not re-iterated in Tsilhqot’in Nation.  Instead the Chief Justice asserted that the inherent limit served a preservative purpose:

[74] Aboriginal title, however, comes with an important restriction—it is collective title held not only for the present generation but for all succeeding generations.  This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it.  Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. …

Justification

The Chief Justice repeated the well-established components of the justification requirements first articulated in  R. v. Sparrow, [1990] 1 S.C.R. 1075.

[77] To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group….
It is noteworthy, however, that she described the duty to consult as a “procedural duty” in contrast with the substantive requirements that arise after the establishment of Aboriginal title:

[78] The duty to consult is a procedural duty that arises from the honour of the Crown prior to confirmation of title. …

[80] Where Aboriginal title is unproven, the Crown owes a procedural duty imposed by the honour of the Crown to consult and, if appropriate, accommodate the unproven Aboriginal interest.  By contrast, where title has been established, the Crown must not only comply with its procedural duties, but must also ensure that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982.  This requires both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.

The Chief Justice also asserted that the compelling and substantial objective of the government justifying an infringement of Aboriginal title must be considered from the Aboriginal perspective as well as from the perspective of the broader public, and that the process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d’être of the principle of justification. 

[82] … To constitute a compelling and substantial objective, the broader public goal asserted by the government must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective.

As for interests that are capable of justifying an infringement she quoted, with added emphasis, the list from paragraph 165 of the Delgamuukw judgment:

… the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title.

The Chief Justice elaborated on the requirement that any proposed incursion on Aboriginal title be consistent with the Crown’s fiduciary duty towards Aboriginal people.  She declared that the Crown’s underlying title in the land is held for the benefit of the Aboriginal group and constrained by the Crown’s fiduciary or trust obligation to the group.  Two principles were said to flow from this fact:

[86] First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.

[87] Second, the Crown’s fiduciary duty infuses an obligation of proportionality into the justification process.  Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact).  The requirement of proportionality is inherent in the Delgamuukw process of reconciliation and was echoed in Haida’s insistence that the Crown’s duty to consult and accommodate at the claims stage “is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed” (para. 39).

[88] In summary, Aboriginal title 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 one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  …

Remedies and Transition

The Chief Justice contrasted the Crown’s duties and the remedies available to Aboriginal groups before and after the establishment of Aboriginal title, which she indicated could be accomplished by either court declaration or agreement.  Prior to the establishment, the Crown is required to “consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups”. [Emphasis added] Should the Crown fail to discharge its duty to consult, various remedies are available including injunctive relief, damages, or an order that consultation or accommodation be carried out.

After Aboriginal title is established the Crown is required to seek the consent of the title-holding Aboriginal group to developments on the land.  If consent is not achieved, development can only proceed if the Crown has discharged its duty to consult and can justify its intrusion on title.  The Court added that Aboriginal title holding groups challenging such intrusions had “the usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title”.

The Chief Justice noted that the duties of the Crown could change the closer an Aboriginal group got to establishing Aboriginal title:

[91] The practical result may be a spectrum of duties applicable over time in a particular case.  At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests.  As the claim strength increases, the required level of consultation and accommodation correspondingly increases.  Where a claim is particularly strong—for example, shortly before a court declaration of title—appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim.  …
The Supreme Court of Canada made it clear that even if the Crown had fulfilled its procedural duty of consultation prior to the establishment of Aboriginal title, it might be required to revisit its actions after title was established:

[92] Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward.  For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.  Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

The Court indicated that the Crown could protect itself from such a possibility by obtaining Aboriginal consent:

[97] I add this.  Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

With respect to the Tsilhqot’in case itself, the Chief Justice found that the Tsilhqot’in had a strong prima facie claim to the land at the time of the impugned government action, that the intrusion was significant, and that the duty to consult owed by the Crown thus fell at the high end of the spectrum and required significant consultation and accommodation in order to preserve the Tsilhqot’in interest.  She further found that the Crown’s duty to consult was breached when Crown officials engaged in the planning process for the removal of timber.  In particular, she found that the inclusion of timber on Aboriginal title land in a timber supply area, the approval of cut blocks on Aboriginal title land in a forest development plan, and the allocation of cutting permits all occurred without any meaningful consultation with the Tsilhqot’in.

The Chief Justice also found that upon the Court’s declaration, the Tsilhqot’in established Aboriginal title to the lands designated as such by the trial judge with the exception of privately owned lands, and lands under water. 

This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits.  As we have seen, this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land.

Applicability of Provincial Laws to Aboriginal title lands

Although not necessary to the decision, the Court agreed to address the issue of the applicability of provincial laws to Aboriginal title lands in light of the extensive submissions that had been made to it on the subject.  It approached the issue by considering three questions:

  • Do provincial laws of general application apply to land held under Aboriginal title and, if so, how?;
  • Does the British Columbia Forest Act on its face apply to land held under Aboriginal title?; and
  • If the Forest Act on its face applies, is its application ousted by the operation of the Constitution of Canada?

Provincial Laws of General Application

The Chief Justice observed that as a general proposition, provincial governments have the power to regulate the use of all lands within the province, whether held by the Crown, by private owners, or by the holders of Aboriginal title, pursuant to section 92(13) of the Constitution Act, 1867.  However, this power was limited constitutionally by s. 35 of the Constitution Act, 1982, and, in some situations by s. 91(24) of the Constitution Act, 1867.  She reiterated the factors outlined in Sparrow that need to be considered in determining whether or not an Aboriginal right was meaningfully diminished or infringed and added:

[105]   It may be predicted that laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests of British Columbia will usually be reasonable, not impose an undue hardship either directly or indirectly, and not interfere with the Aboriginal group’s preferred method of exercising their right.  And it is to be hoped that Aboriginal groups and the provincial government will work cooperatively to sustain the natural environment so important to them both.  This said, when conflicts arise, the foregoing template serves to resolve them.

The Forest Act

The Chief Justice approached the question of the applicability of the Forest Act as a matter of statutory interpretation.  She noted that the Act dealt with “Crown timber” and defined “Crown timber” as timber located on “Crown land”.  “Crown land” was defined as “land, whether or not it is covered by water, or an interest in land, vested in the Crown.”  She then found that property is vested in possession where there is a present entitlement to enjoyment of the property. Since the Crown did not have a right to the present enjoyment of timber on Aboriginal title lands, it followed that the Forest Act did not, as presently enacted, apply to Aboriginal title lands. 

However, the Court was unwilling to find that the Forest Act had never applied to Aboriginal title lands.   It was concerned that until a declaration of Aboriginal title was made, Aboriginal groups would have had no legal right to manage the forest; their only right being to consultation and possibly accommodation.  This raised the spectre that prior to a declaration of Aboriginal title no one would have the legal right to regulate vast areas of the Province which might ultimately be found to be covered by Aboriginal title.

“Looked at in this very particular historical context”, it seemed clear to the SCC that the legislature must have intended the words “vested in the Crown” to cover at least lands to which Aboriginal title had not yet been confirmed, and that the Forest Act must have continued to apply to Aboriginal title lands up until the time that title was confirmed by court declaration or agreement.

Constitutional Constraints on the Application of Provincial Laws: s. 35

Not surprisingly, the Chief Justice found that the application of provincial (and federal) laws to Aboriginal title lands was constrained by section 35 of the Constitution Act, 1982 and reiterated the oft-repeated requirement to justify any infringements of Aboriginal and treaty rights.  In doing so she described the characteristics or incidents of Aboriginal title as:

  • the right to exclusive use and occupation of the land;
  • the right to determine the uses to which the land is put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples; and
  • the right to enjoy the economic fruits of the land.

With respect to the question of whether Aboriginal title had been infringed she again suggested that:

[123] General regulatory legislation, such as legislation aimed at managing the forests in a way that deals with pest invasions or prevents forest fires, will often pass the Sparrow test as it will be reasonable, not impose undue hardships, and not deny the holder of the right their preferred means of exercising it.  In such cases, no infringement will result.

However, she added that:

[124] …  The issuance of timber licences on Aboriginal title land for example—a direct transfer of Aboriginal property rights to a third party—will plainly be a meaningful diminution in the Aboriginal group’s ownership right and will amount to an infringement that must be justified in cases where it is done without Aboriginal consent.

With respect to justification the Chief Justice again recited the requirements which she had outlined earlier in the judgment but added some comments in agreement with the findings of the trial judge and the Court of Appeal that no substantial and compelling objective had been demonstrated in this case:

[127] …  Granting rights to third parties to harvest timber on Tsilhqot’in land is a serious infringement that will not lightly be justified.  Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting, something that was not present in this case.

Constitutional Constraints on the Application of Provincial Laws: s. 91(24)

In her analysis of whether the Division of Powers prevented the application of provincial forestry legislation to Aboriginal title lands, the Chief Justice started from the proposition that the regulation of forestry on Aboriginal title land possessed a double aspect, with both levels of government enjoying concurrent jurisdiction.  She added that normally, concurrent legislative power created no conflicts, since federal and provincial governments generally cooperated productively in such areas.

Nevertheless, conflicts sometimes arose, and when they did the doctrines of paramountcy and interjurisdictional immunity were there to resolve them. There were no issues of paramountcy in this case.

Insofar as the doctrine of interjurisdictional immunity was concerned, the Chief Justice observed that no case had held that Aboriginal rights, such as Aboriginal title to land, fell within the core of federal power under s. 91(24), that conclusion had been stated in obiter dicta.  She also pointed out, however, that this dicta was inconsistent with other obiter statements that provincial governments were constitutionally permitted to infringe Aboriginal rights where such infringement is justified pursuant to s. 35 of the Constitution Act, 1982.  She acknowledged that the ambiguous state of the jurisprudence had created unpredictability.  It was clear that where valid federal law interfered with an Aboriginal or treaty right, the s. 35 Sparrow framework governed the law’s applicability.  It was less clear, however, that this was so where valid provincial law interfered with an Aboriginal or treaty right.

She proceeded to clear up this ambiguity in a clear and unequivocal fashion:

[139] As discussed, s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title.  Neither level of government is permitted to legislate in a way that results in a meaningful diminution of an Aboriginal or treaty right, unless such an infringement is justified in the broader public interest and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group.  The result is to protect Aboriginal and treaty rights while also allowing the reconciliation of Aboriginal interests with those of the broader society.

[140] What role then is left for the application of the doctrine of interjurisdictional immunity and the idea that Aboriginal rights are at the core of the federal power over “Indians” under s. 91(24) of the Constitution Act, 1867?  The answer is none.

She reasoned that Aboriginal and Treaty rights were not part of federal power, but rather represented limits on both federal and provincial powers.  To speak of them as at the core of such powers was therefore meaningless:

[144] The doctrine of interjurisdictional immunity is designed to deal with conflicts between provincial powers and federal powers; it does so by carving out areas of exclusive jurisdiction for each level of government.  But the problem in cases such as this is not competing provincial and federal powers, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.

She also pointed to the practical difficulties created by the application of the interjurisdictional immunity doctrine, a doctrine “often at odds with modern reality”, including the observation that:

[147] … to exclude provincial regulation of forests on Aboriginal title lands would produce uneven, undesirable results and may lead to legislative vacuums.  The result would be patchwork regulation of forests—some areas of the province regulated under provincial legislation, and other areas under federal legislation or no legislation at all. This might make it difficult, if not impossible, to deal effectively with problems such as pests and fires, a situation desired by neither level of government.

The Chief Justice drew attention to the fact that the Court’s decision in R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915, which had been relied upon by the trial judge to find that the provincial Forest Act was inapplicable to Aboriginal title lands, had been decided prior to the Court’s articulation of the modern approach to interjurisdictional immunity in Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 and Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, and was thus of limited precedential value.  She added:

[150] …To the extent that Morris stands for the proposition that provincial governments are categorically barred from regulating the exercise of Aboriginal rights, it should no longer be followed.  I find that, consistent with the statements in Sparrow and Delgamuukw, provincial regulation of general application will apply to exercises of Aboriginal rights, including Aboriginal title land, subject to the s. 35 infringement and justification framework.  This carefully calibrated test attempts to reconcile general legislation with Aboriginal rights in a sensitive way as required by s. 35 of the Constitution Act, 1982 and is fairer and more practical from a policy perspective than the blanket inapplicability imposed by the doctrine of interjurisdictional immunity.

Conclusion

The Supreme Court of Canada accordingly allowed the appeal and granted a declaration of Aboriginal title over the area requested by the Tsilhqot’in.  It further declared that British Columbia had breached the duty to consult which it owed to the Tsilhqot’in through its land use planning and forestry authorizations.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do

Patrick G. Foy, Q.C. and Kenneth J. Tyler represented the Province of British Columbia on the argument of this appeal.

Author

Kenneth J. Tyler 
KTyler@blg.com
604.640.4185

Expertise

Aboriginal Law
Appellate Advocacy