In Part V of our seven-part series on Tsilhqot’in Nation v. British Columbia, we explore the implications of the decision on treaty land.

Some commentators have suggested that while the Tsilhqot’in decision has significant implications for non-treaty land, land subject to treaty is generally not affected by Tsilhqot’in. Our view is that this is a dangerous conclusion that could result in missteps by both industry and government in their dealings with Aboriginal people.

Many treaties do not contain a surrender of Aboriginal title. Where this is the case, it is clearly open for treaty Aboriginal groups to claim (and prove) Aboriginal title in the manner set out in Tsilhqot’in. However, even where there is surrender language in a treaty, the principles of treaty interpretation suggest that the treaty Aboriginal groups can claim (and potentially prove) Aboriginal title. In other words, Tsilhqot’in has important implications across Canada irrespective of the treaty context.

Treaties Without Surrender Language

Many early treaties with Aboriginal people in Canada, like the Peace and Friendship Treaties that cover parts of Atlantic Canada, focus solely on non-land related matters such as trade, military allegiance and cooperation. These treaties do not contemplate any surrender of the Aboriginal groups’ rights to land and resources.

This absence of surrender language clearly leaves the door open for future Aboriginal title claims over Treaty lands. If Aboriginal signatories to these treaties can demonstrate evidence of sufficient, continuous and exclusive occupation of the land prior to contact, they will be able to prove Aboriginal title and be entitled to all of the rights and benefits associated with it – including ownership and control of resources.

Interestingly, the very fact that these groups entered into treaty with European settlers may help demonstrate some of the elements of Aboriginal title. The new arrivals to Canada clearly recognized that there were pre-existing governments in place that had exclusive jurisdiction and authority to enter into treaty on a government-to-government basis.

Treaties With Surrender Language

Other treaties, such as the Numbered Treaties which cover much of modern day Canada, include a complete surrender of Aboriginal rights to land. For example, in the Numbered Treaties, the affected Aboriginal parties have agreed to “…cede, release, surrender and yield up to the Government of the Dominion of Canada … for ever, all their rights, titles and privileges whatsoever, to the lands…”.

Because Aboriginal title has been described by Canadian courts as “an Aboriginal right to the land itself”, this type of surrender language is, on its face, a barrier to claims of Aboriginal title. The government’s position has typically been that the written language is unequivocally clear that any underlying claims to Aboriginal rights and title outside of the treaty are completely extinguished. However, this is only one legal perspective on the issue.

Aboriginal groups who are subject to treaties with surrender language often believe that the written language is inconsistent with the true intentions of the parties, maintaining that their ancestors agreed to share the land in a manner guided by mutual benefit and friendship – not to surrender the land completely. In light of this uncertainty, and given the imbalanced nature of historic treaty negotiations, they argue that the written text should be disregarded in favor of a more comprehensive analysis of the evidence – and that the evidence does not support the notion that a full surrender of all rights to lands and resources were intended.

Consider, for example, the current Chief Justice’s dissenting opinion in R v. Marshall summarizing the principles to be applied when interpreting treaties:

1. Aboriginal treaties are unique agreements that attract special principles of interpretation.
2. Ambiguities or doubtful expressions should be resolved in favour of the Aboriginal group.
3. Of the possible interpretations of common intention, the one which best reconciles the interests of both parties at the time the treaty was signed should be used.
4. The integrity and honour of the Crown is presumed.
5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties.
6. The words must be given their natural meaning for the parties at the time.
7. The court cannot alter the terms or exceed what is possible on the language.
8. A technical or contractual interpretation of treaty wording should be avoided.

Based on the foregoing, any court facing a claim to Aboriginal title land over land subject to treaty surrender language will be asked to balance competing interpretive principals: namely, the clear language of the treaty (see #7 above) versus the full historical context from an Aboriginal perspective (see #3, #5, #6 and #8 above). In this regard, in Marshall the current Chief Justice was clear that each treaty must be considered in its unique historical and cultural context, and that, even absent ambiguity, extrinsic evidence (being evidence outside the text of the treaty, such as oral or written historical accounts) can be considered and may suggest alternative interpretations that are not detected on first reading.

As importantly, it is not a treaty First Nation’s job to challenge the effect of surrender language. The Supreme Court in R v. Badger confirmed that the onus of proving that an Aboriginal right has been extinguished rests with the Crown, meaning that it is the government’s obligation to prove that surrender language in a treaty is effective given the historic and cultural context in which the treaty was signed.

These interpretive principles were tested in Samson Indian Nation and Band v. Canada, in which the surrender language in Treaty 6 was challenged. Based on the specific facts of this case, the judge found that the historical evidence indicated that both parties were aware of the absolute nature of the surrender. Accordingly, while the First Nation was not successful in this case, the court was willing to undertake a comprehensive analysis of historical evidence. If there was evidence of a misunderstanding between the parties regarding the nature of the surrender language at the time the treaty was signed, the court may well have found that the effect of the surrender language was limited and did not affect the Nation’s claim to Aboriginal title.

What Does All of This Mean?

Given these principles, it is clear that government and industry cannot blithely take the position that Tsilhqot’in does not apply in the treaty context. Where treaties do not contain surrender language, the ability of an Aboriginal group to claim (and prove) Aboriginal title exists to the same extent as it does on non-treaty lands. Where treaties contain surrender language, it is possible for Aboriginal groups to claim, and potentially prove, Aboriginal title in a manner consistent with Tsilhqot’in.

One of the broadest implications of this analysis relates to government actions that affect asserted Aboriginal title over treaty lands. Without a doubt, the government must consult and accommodate treaty First Nations regarding potential impacts of government decisions on their treaty rights. However, where a treaty First Nation asserts Aboriginal title as well as treaty rights, the government may have an additional obligation to consult and accommodate impacts on that asserted Aboriginal title prior to proof. This means that despite the rhetoric about treaties bringing development certainty, historic treaties may not provide as much certainty as government and industry have hoped.

More Information

If you would like more information regarding the implications of the Tsilhqot’in decision or on Aboriginal law issues generally, please contact Rob Miller, Practice Group Leader for the First Nations Economic Development Group: 778-945-3060 or rob@millertiterle.com.