On June 26, 2014, the Supreme Court of Canada released its reasons in Tsilhqot’in Nation v. British Columbia. The decision is the first time that an Aboriginal group has proved Aboriginal title over a significant land base in Canada. However, it is also a landmark decision for another reason: it will fundamentally change the way in which resource-based projects in Canada are regulated and approved.
To understand the implications of the Tsilhqot’in case, it is necessary to understand why Aboriginal rights and title have special significance in Canada. This understanding begins with a very simple history: Aboriginal people were here when European settlers arrived, living on and using the land that would become known as Canada. These first inhabitants were never conquered and, in many cases, never signed treaties surrendering their interest in the land. This is especially true in British Columbia.
There are Aboriginal interests in Canadian land and resources that pre-date European contact and have never been surrendered. Canadian courts have acknowledged these interests as Aboriginal rights and title. Aboriginal rights recognize the rights of Aboriginal people, which pre-dated European contact, to carry out certain activities on traditional lands, such as hunting, fishing, gathering and a host of other activities. Aboriginal title, on the other hand, recognizes the pre-existing ownership of the land by Aboriginal people.
Until recently, it was not clear to Canada how Aboriginal title could be proven by Aboriginal groups. It was also not clear what a successful claim to Aboriginal title meant for Aboriginal people, the federal and provincial governments, or non-Aboriginal people using the land. These are the issues that the Supreme Court of Canada’s decision in Tsilhqot’in addresses.
The key principles regarding Aboriginal title in Canada are:
Aboriginal title confers on Aboriginal groups the exclusive right to decide how the land is used and the exclusive right to benefit from those uses.
Aboriginal title can be proved over large areas of land that were used nomadically or seasonally by Aboriginal groups, not just over discrete parcels of intense use and occupation such as traditional village sites.
Where Aboriginal title is proved, provincial and federal laws do not automatically cease to apply; rather, these laws continue to be valid provided that any infringements of Aboriginal title are either consented to by Aboriginal groups or are justified (more on this below).
According to Supreme Court of Canada, Aboriginal title is similar to private property ownership. This means that an Aboriginal group that has proven Aboriginal title has the right to decide how the land will be used; the right to use, occupy and possess the land; the right to the economic benefits from the land; and the right to pro-actively use and manage the land.
However, one important restriction distinguishes Aboriginal title land from private property ownership: because Aboriginal title is held by an Aboriginal group as opposed to an individual, it must be held and managed for the benefit of current and future generations. This means that it can only be transferred to the government, and it cannot be used or developed in a manner that would deprive future generations of the ability to benefit from the land in a meaningful way.
Governments and other non-Aboriginal users of Aboriginal title land will need to secure the consent of Aboriginal groups, and if that consent cannot be obtained, governments will be held to the high standard of having to justify any infringement on Aboriginal title.
Rob Miller is a co-founder of the Toronto law firm of Miller Titerle + Company LLP and the leader of its First Nations Economic Development group.