June 27, 2014

SCC’s first declaration of Aboriginal Title: Sufficient, Continuous and Exclusive Use, rather than Specific and Intensive Occupation


The Supreme Court of Canada confirmed Aboriginal title claims of Tsilhqot’in Nation to a small (five percent) portion of their traditional territories, based on regular and exclusive use of sites or territory within the claim area, instead of looking to areas of specific, intensive occupation as done by the BC Court of Appeal, in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. In doing so, the court clarified the nature of aboriginal title and its relationship to Crown actions. The Tsilhqot’in case arose out of the BC government granting a commercial logging licence on land claimed by Tsilhqot’in Nation. The court made many significant findings and clarifications, some of which we summarize below.

1. Procedures in land claim cases: For you lawyers, in Aboriginal land claims, courts should take a functional approach to pleadings – pleadings outline the material allegations and relief sought, and minor defects should be overlooked in the absence of clear prejudice. [20]

2. Elements required for Aboriginal title: Aboriginal title requires occupation that is “sufficient,” “continuous” (when present occupation is relied on), and “exclusive”. The court described Tsilhqot’in Nation as “semi-nomadic” and allowed proof of occupation based on regular and exclusive use of sites or territory, instead of a narrower approach that would result in “small islands of title surrounded by larger territories where the group possesses only Aboriginal rights….”[29]

(a) Sufficiency: The question of sufficient occupation must account for both the common law perspective (which may encompass lands used and over which effective control is exercised) [36] and the Aboriginal perspective (including the group’s size, manner of life, material resources, technological abilities, and the character of the lands claimed). [35] The court noted, for example, that the land, while extensive, was harsh and capable of supporting only 100 to 1,000 people. [37]

Sufficient occupation requires acts that “would communicate to third parties that it held the land for its own purposes”, [38] e.g., acts indicating a “permanent presence and intention to hold and use the land for the group’s own purposes” given the group’s manner of life and the nature of the land. Cultivated fields and constructed dwellings are not essential. [38] The notion of occupation had to include a “nomadic or semi-nomadic” way of life of some Aboriginal peoples. [38] Ultimately the court noted that a “culturally sensitive” approach suggested that “regular use of territories for hunting, fishing, trapping and foraging is ‘sufficient’ use to ground Aboriginal title,” provided that such use “evinces an intention… to hold or possess the land in a manner comparable to what would be required to establish title at common law.” [42]

(b) Continuity: Continuity “does not require Aboriginal groups to provide evidence of an unbroken chain of continuity”; it only requires that “present occupation must be rooted in pre-sovereignty times”. [46]

(c) Exclusivity: Exclusivity means an “intention and capacity to control the land.” [48] Exclusivity might be established by proof that others were excluded from the land, or that others were only allowed access to the land with the permission of the claimant group. [48] Notably, “even the lack of challenges to occupancy may support… intention and capacity to control.” [48]

3. The meaning of Aboriginal title: Aboriginal title is a beneficial interest in land, with a right to “use it, enjoy it and profit from its economic development” [70] It is a “collective” title, held for present and later generations, [74] that confers ownership rights similar to “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 pro-actively use and manage the land.” [73] It cannot be given away except to the Crown. [74] Aboriginal title owners can choose to use their land in modern ways. [75] The government or others seeking to use land subject to Aboriginal title must obtain consent, or the government must establish that an incursion is “justified”. [76]

Aboriginal title is not merely a right to refuse Crown land management or usage plans; it is the right to proactively use and manage the land. [94]

4. The duty to consult: If Aboriginal title is asserted but not yet confirmed, the Crown has a “procedural” duty to consult before carrying out an action that could adversely affect the right, and “if appropriate, accommodate the Aboriginal right”. [78] If Aboriginal title is proven, the Crown still owes its procedural duties (of consultation and accommodation), but must also show that its actions are consistent with the requirements of s. 35 of the Constitution Act, 1982. The Crown must consult “in good faith”. [89]

If the Crown fails to discharge its duty to consult, various remedies are available, including injunctive relief, “damages” or an order that consultation or accommodation be carried out. [89]

The court found a breach of the duty to consult when the Crown engaged in the planning process for removing timber, e.g., by including timber on the land in a timber supply area, by approving cut blocks in a forest development plan, and allocating cutting permits, all without “meaningful” consultation. [96]

5. The requirements of section 35 of the Constitution Act, 1982, including justification: The section 35 “framework” involves a two-step justification process. First, the Crown must show a “compelling and substantial governmental objective”. The court noted that the broader public goal “must further the goal of reconciliation, having regard to… the Aboriginal interest….” [82] Secondly, the Crown holds underlying title in the land for the benefit of the Aboriginal Group, and is constrained by a fiduciary duty to the group. [85] The proposed incursion must be consistent with the Crown’s fiduciary duty. [84] The incursion must be “necessary” to achieve the government’s goal; the government can “go no further than necessary to achieve it (minimal impairment)”; and benefits of the goal are “not outweighed by adverse effects on the Aboriginal interest (proportionality of impact)”. [87]

Once Aboriginal title is established, any infringement by an ongoing project must be justifiable. Accordingly, a project started prior to title being established, and without consent, might have to be cancelled upon proof of title, if unjustifiably infringing. Similarly, a law enacted before title being established might be rendered inapplicable to the extent of its unjustifiably infringing title. [92]

Notably the court agreed that the government did not possess a compelling and substantial objective in issuing the cutting permits, since the proposed cutting sites were not economically viable, and the permits were not directed at preventing the spread of the mountain pine beetle. [127] The cutting occurred despite not being economically viable, because levels of logging must sometimes be maintained for a tenure holder to keep logging rights. [127]

6. Provincial laws: Provincial laws (that apply generally, rather than specifically to Indians) apply to lands under Aboriginal title, but provincial powers are limited by section 35 of the Constitution Act, 1982, and by the federal power over “Indians, and Lands reserved for Indians” under section 91(24) of the Constitution Act, 1967. [103] Aboriginal rights are a limit on both federal and provincial jurisdiction. [141] The section 35 framework applies to exercises of both federal and provincial power. [152]

A provincial government must justify any law of general application where a limitation imposed is unreasonable; where the legislation imposes an undue hardship, or where the legislation “denies the holders of the right their preferred means of exercising the right”. [104] However, while the Forest Act was intended to cover timber on Crown land despite asserted Aboriginal title, it was not intended to apply to timber on Aboriginal title land. [115]

The Enbridge Northern Gateway Pipeline and the Kinder Morgan Trans Mountain Pipeline

This case was decided a week after the Governor in Council announced approval forthe Northern Gateway Enbridge Pipeline Project, and during the Kinder Morgan Trans Mountain Pipeline Project regulatory review by the National Energy Board.  Both projects involve pipeline routes that cross through a significant portion of Aboriginal lands where title has not yet been proven in a court. The clarity of this decision and the court’s rejection of the narrower test will assist Aboriginal groups in proving their title rights, and may result in additional extraordinary expense and political uncertainty relating to whether these pipeline projects will ever be built.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (June 26, 2014)

Lisa C. Fong and Michael Ng