On June 26, 2014, the Supreme Court of Canada released its reasons in Tsilhqot’in Nation v. British Columbia. The decision represents the first time that an Aboriginal group has proven Aboriginal title over a significant land base in Canada.
However, it is also a landmark decision for other reasons: the Supreme Court has clarified the law regarding the nature of Aboriginal title and, in doing so, will likely bring fundamental change to the way in which decisions are made regarding resource use on lands subject to Aboriginal title in Canada.
The Supreme Court of Canada found the Tsilhqot’in Nation has provided sufficient evidence of exclusive use and occupation to support an Aboriginal title claim over just less than 2000 square kilometres. In doing so, the Supreme Court outlined a number of key principles that will impact the allocation of resources on Aboriginal title land in Canada:
- Once proven, Aboriginal title confers on Aboriginal groups the exclusive right to decide how the land is used and to benefit from those uses.
- Aboriginal title can be proven over large areas of land that were used nomadically or seasonally by Aboriginal groups, not just discrete parcels of intense use and occupation such as traditional village sites.
- Where Aboriginal title is proven, provincial laws do not automatically cease to apply; rather, provincial laws continue subject to the requirement that any infringements of proven Aboriginal title are justified.
- The government can authorize infringements to proven Aboriginal title if the Aboriginal group provides its consent, or if the infringement can be justified.
- Infringements of proven Aboriginal title can be justified if there is a “compelling and substantial” public purpose, and if the infringement is consistent with the Crown’s fiduciary duty to the Aboriginal group.
Aboriginal groups, government and industry are all considering the implications of the decision for treaty negotiations, government-to-government agreements, public policy and resource allocation. While the general sense is that the decision will result in a significant departure from current practices, it will take time to determine exactly what the resulting change will be.
In this vein, it is important to bear in mind that while Tsilhqot’in Nation v. British Columbia addresses the process for, and implications of, proving Aboriginal title, no other First Nations have proven Aboriginal title as a result of the decision. In other words, the world has not changed overnight: the road to prove Aboriginal title will continue to be a lengthy one and the law regarding the requirement for pre-proof consultation has not changed.
That said, we expect that the decision will have a number of implications for Aboriginal rights and resource use in British Columbia, including the following:
- Government will be required to conduct deeper pre-proof consultation
- Aboriginal title will be used as a tool to oppose controversial projects
- The sufficiency of current government revenue sharing initiatives will be questioned
- Industry will seek free, prior and informed consent of Aboriginal groups through Impact Benefit Agreements
- Existing projects will come under scrutiny
- The nature of existing treaties will be examined to determine whether Aboriginal title has been surrendered