The Supreme Court of Canada’s recent decision in Tsilhqot’in vs. British Columbia is important. But it’s not the first case dealing with aboriginal title, and it’s not a “game-changer” that will undermine governmental authority or the ability to approve projects in the resource sector.
Perhaps the most legally significant aspect of the judgment is that it confirms, subject to certain requirements, that governments can continue to regulate the land base where aboriginal title is claimed or proven.
And the reasons for which title can be infringed are not vague. The court has, twice now, expressly stated that these reasons can include purposes such as infrastructure development, mining and forestry, provided justification is shown. So while this decision is historic and significant for the Tsilhqot’in people who have been the first to successfully prove title in a specific area, it does not represent a fundamental advance for the law of aboriginal title. To the contrary, it advances the rights of provincial governments to infringe title.
It also reopens the possibility that title may have been extinguished in some cases by provincial laws and actions taken before 1982, when protection for aboriginal rights was put in our Constitution.
The Supreme Court has also made clear that aboriginal title can potentially exist in areas beyond mere village sites or areas of permanent historical habitation. This is important but not radical. In fact, the Supreme Court expressly said this finding is consistent with its previous decisions.
The bottom line is that title requires proof of occupancy – regular and exclusive use of particular areas of land – at the time Canadian sovereignty was first asserted.
So how much land might be the subject of aboriginal title (if and) as other litigation proceeds?
Could it be vast swaths of British Columbia, which, as commonly noted, is subject to total claims comprising more than 100% of the province (given overlaps)?
That is very doubtful.
In this case, the Tsilhqot’in Nation claimed only 5% of its traditional territory aboriginal title, and succeeded in obtaining only 40% of that. This represents 2% of the traditional territory. And that was for a people that the court accepted as having a particular history that supported a relatively broad interpretation of occupation.
It is likely that many other First Nations would not be able to demonstrate the same facts.
While each case would need to be considered on its own merits, the order of magnitude of land that is involved should not be overstated. Two per cent of the claimed traditional territory in this case is roughly the same percentage of the land mass of the United States that is covered by Indian reservations.
None of this is to downplay the significance of aboriginal title or the importance of meaningful consultation, accommodation and justification as permitting decisions are made. Indeed, respecting those principles is a constitutional prerequisite to governments continuing to exercise the authority the court confirms they have.
But at the same time, responsible discourse and reconciliation require all parties to acknowledge that the effect of this decision (and surely its underlying purpose) is not to fundamentally swing the balance of power in favour of any one party or to undermine governments’ authority. It is to provide clarity on where aboriginal title may be proven and what governments must do to continue governing in light of that.
To this end, and to address the many questions that title raises, the province may wish to take up the court’s repeated invitation to develop legislation dealing with such matters.
For example, a new aboriginal title and reconciliation act could be created to do things such as:
- address the immediate questions investors have (e.g. what is the effect of title on existing or future mineral or forest tenures?);
- limit third-party actions on title lands where and as appropriate;
- spell out when and what compensation will be available to third parties affected by aboriginal title;
- include procedural requirements and decision-making principles to ensure any infringements are justified;
- provide for First Nation compensation when justified title infringements occur (similar to the existing revenue-sharing program for mining in B.C.); and
- delegate powers where appropriate to aboriginal groups/persons to administer provincial laws applying on title lands.
While the province would certainly want to consult aboriginal groups in developing such legislation, there would not be a requirement for consensus, and, provided such legislation were reasonable, one would expect the courts to embrace it. •
Robin Junger is a lawyer with McMillan LLP and co-chairs its aboriginal and environmental law groups. He is a former deputy minister of energy, mines and petroleum resources for B.C.