In Part II of our seven-part series on Tsilhqot’in Nation v. British Columbia, we ask and answer the following important question: can government pass and enforce federal and provincial laws that apply Aboriginal title land?

The short and simple answer is “yes” – even once Aboriginal title is proved over an area of land, as was the case in Tsilhqot’in, the federal and provincial governments can continue to regulate. However, Aboriginal title includes the exclusive right to occupy, benefit from and manage the land. If government laws and regulations infringe any of these elements of Aboriginal title, the government must be able to justify that infringement.

I. CONSTITUTIONAL PROTECTION OF ABORIGINAL TITLE

When regulating activities on Aboriginal title land, the federal and provincial governments are both bound by section 35 of the Constitution, which “recognizes and affirms the existing rights of Aboriginal peoples of Canada.” Aboriginal title is one of the “existing rights of Aboriginal peoples of Canada,” and is therefore protected by section 35.

This means that federal and provincial laws intended to apply to Aboriginal title land must respect the protection of Aboriginal rights (including Aboriginal title) in section 35 of the Constitution, and if a law infringes Aboriginal title, the government must be able to justify the infringement.

In Tsilhqot’in, the Supreme Court of Canada laid out the process for determining whether a law infringes Aboriginal title and the test for whether such an infringement of Aboriginal title can be justified.

II. DOES LEGISLATION INFRINGE ABORIGINAL TITLE?

The Supreme Court of Canada adopted a test for determining whether an infringement has occurred from an earlier case called Sparrow, which dealt with the infringement of the Aboriginal right to fish by fisheries legislation. This test looks at three factors that will help determine whether a “meaningful diminution” of an Aboriginal right has occurred as the result of any legislation:

(1) whether the limitation imposed by the law is unreasonable;

(2) whether the law imposes undue hardship on the Aboriginal group; and

(3) whether the law denies the Aboriginal group of their preferred means of exercising the Aboriginal right.

The key takeaway is that many provincial and federal laws will pass this portion of the test. As the Court explained in Tsilhqot’in, “laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests of British Columbia” will not often diminish Aboriginal title. If a law does not result in a meaningful diminution of Aboriginal title, then it does not violate section 35 of the Constitution. If that is the case, the analysis stops here – the law is valid and applies to Aboriginal title land. However, if a law is found to infringe Aboriginal title, the government will be required to justify that infringement.

III. WHEN CAN AN INFRINGEMENT BE JUSTIFIED?

As previous cases have explained, the purpose of justification is to reconcile Aboriginal interests with the broader interests of society as a whole; in other words, the courts will be asked to consider whether infringements of Aboriginal title are justified as a means of balancing the right of the government to regulate with the right of Aboriginal groups to benefit from and control Aboriginal title land.

The justification test set out in Tsilhqot’in builds on the analysis in previous legal cases, but was clarified extensively. A law’s infringement of Aboriginal title can be justified if:

(1) the government has meaningfully consulted with the Aboriginal group;

(2) there is a compelling and substantial public objective; and

(3) the government has acted in a manner consistent with its fiduciary obligation to the Aboriginal group.

Meaningful Consultation

The Supreme Court of Canada was clear in Tsilhqot’in that meaningful consultation must occur in order to justify an infringement of Aboriginal title.

The concept of “consultation” is well known in the context of government decisions prior to proof of Aboriginal title: the seminal 2004 case of Haida Nation created this procedural duty that required government to engage with potentially affected Aboriginal groups before making any decision that may affect potential Aboriginal rights and title of those groups. The question of whether the government has complied with its consultation obligations regarding asserted (but not proven) Aboriginal rights and title has been the most litigated issue in Aboriginal law over the last decade. Often, the Court has found that the government got it wrong.

In Tsilhqot’in, the Court made it clear that the government will be held to a much higher standard regarding consultation following proof of Aboriginal title than before proof of Aboriginal title. We expect that, much like pre-proof scenarios, it will take a number of court cases to establish exactly what “consultation” means in respect of land subject to proved Aboriginal title. However, it is safe to say that once Aboriginal title has been proven, the government’s consultation obligations will dramatically increase.

Compelling and Substantial Objective

Any law that infringes proven Aboriginal rights (including Aboriginal title) must have a “compelling and substantial public objective.” In Tsilhqot’in, the Court endorsed examples of this type of objective from a previous decision known as Delgamuukw, including the development of forestry, mining and hydroelectric power; general economic development; protection of the environment and endangered species; and the building of infrastructure. However, even in particular instances of the above categories, whether a government objective is compelling and substantial must be examined from both the Aboriginal and non-Aboriginal perspective.

What is clear is that while forestry and mining were listed as examples of the types of objectives that can justify an infringement of Aboriginal title, not all forestry and mining laws will pass the justification test. Much like the concept of post-proof consultation, it is safe to say that this concept of “compelling and substantial public objectives” will require some additional guidance from the courts.

Fiduciary Obligation of the Crown

For the government to uphold its fiduciary obligation to an Aboriginal group, a two-step test must be satisfied.
First, the government regulation cannot deprive future generations of the benefit of the land.
Second, the fiduciary duty requires that the law’s impact on Aboriginal title must be proportional in its impact to the objective sought. This requires the courts to assess whether:

(1) the impact of the law on Aboriginal title relates to what the law is designed to accomplish;

(2) the government only infringed Aboriginal title to the extent required to achieve that objective, and

(3) the public good arising out of the legislation exceeds the negative impact on the Aboriginal group holding Aboriginal title.

IV. CONCLUSION

After going through the above analysis, the Court found that the provincial Forest Act (the legislation discussed in Tsilhqot’in) can apply to land over which Aboriginal title has been proved. However, the Court also found that the “[g]ranting [of] rights to third parties to harvest timber on Tsilhqot’in land is a serious infringement that will not lightly be justified” and that should the government wish to grant such harvesting rights in the future, it will need to establish a compelling and substantial objective. In other words, while the regulation of forest resources in the Forest Act may be a justifiable infringement on Aboriginal title, the allocation of timber resources to third parties on Aboriginal title lands may be difficult for the government to justify. (More details on the granting of resource rights on Aboriginal title land will follow in a future article).

To answer the question posed at the beginning of this article: the government can pass and enforce federal and provincial laws on Aboriginal title land. However, where those laws infringe Aboriginal title, the infringement must be justified – and it will likely take a lot more guidance from the courts on exactly how this justification test will be applied.

Rob Miller, the leader of our First Nations practice group, has represented a number of high-profile First Nations in negotiations with government and industry regarding large resource projects. He has also provided advice to large resource companies on social licence, Aboriginal law and project development. Rob is recognized in the 2013 Best Lawyers in Canada guide in the area of energy law, and in the 2014 Lexpert Directory in the area of Aboriginal law.If you would like more information regarding the implications of the Tsilhqot’in decision or on Aboriginal law issues generally, please contact Rob Miller.