Looking to the future: Tsilhqot'in vs. British Columbia

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For the first time in 147 years, the Supreme Court of Canada (SCC) made a declaration of Aboriginal title. The Xeni Gwet'in, one of six Tsilhqot'in Bands, were successful in bringing their claim for for a 1,750 square kilometre tract of land representing just 5 per cent of the traditional Tsilhqot'in territory. The highest court also confirmed that the issuance of provincial forestry licenses on this land unjustifiably infringed Aboriginal rights.

The dispute has lasted for 31 years, but arguably much longer. In 1983, B.C. granted Carrier Lumber Ltd a forest license to cut trees in the Tsilhqot'in territory. Blockades ensued because the Xeni Gwet'in were opposed to the logging. The Ministry of Forests and the Xeni Gwet'in met to discuss this issue, but ultimately talks failed. The Xeni Gwet'in claim to right of first refusal was then amended to include Aboriginal title for the Tsilhqot'in people. 

Increased role for the Provinces

Chief Justice Beverley McLachlin, writing for a unanimous Court, held that the Forest Act applies to Crown land until Aboriginal title is recognized. Once Aboriginal title is recognized, as it now is for the Tsilhqot'in, then the land becomes vested with the Aboriginal group, and not the Crown. Provincial laws will still apply to Aboriginal title lands, subject to certain limitations. The result is that the provinces have an increased role to play in issues of Aboriginal rights and title.

The Court noted that Aboriginal groups had the right to control how their title lands are used, and that potential uses are not confined to pre-sovereignty matters of use. This is a very big step towards reconciliation between Aboriginal communities and wider society, and suggests an increased role for Aboriginal governments.

Possible Implications?

  • There may be more Aboriginal title claims in the courts.
  • There may be more of a focus on working with First Nations in resource development projects.
  • The B.C. Treaty process may no longer be an appealing option for many First Nations. First Nations may obtain more control over their traditional territories by bringing a successful Aboriginal title case than if they successfully conclude a modern day treaty.

This sends a strong message from the Court that governments and industry need to take First Nations concerns seriously. In reponse to this decision, AFN Regional Chief of British Columbia Jody Wilson-Raybould said, "This decision means we now have the opportunity to settle, once and for all, the so-called 'Indian land question' in B.C. and elsewhere in Canada where Aboriginal title exists through good faith negotiations."

Duty to consult

The Supreme Court has followed Rio Tinto vs. Carrier Sekani for remedial direction for breaches of the Crown's duty to consult and accommodate, reiterating that the remedy in situations where the Crown has breached its fiduciary duty is through injunction relief, damages or an order that consultation or accommodation be carried out.

The Crown was held to have breached its duty to consult and accommodate for the Xeni Gwet'in. The breach was held to have occurred on the land in 1983 and onwards, and this breach occurred even before Aboriginal title was declared; when the Aboriginal group had an interest in the land but had not yet been legally recognized by the SCC or through the B.C. Treaty Process. No meaningful consultation ever occurred between the government and the Xeni Gwet'in.

The implications of this decision on the duty to consult and accommodate are that there is now:

  • A strengthened duty, and more of a move towards consent. Obtaining Consent of First Nations for resource development could avoid costly legal challenges. If First Nations do not consent, then government must undertake a justification of the infringement of Aboriginal title
  • Projects may be cancelled after a First Nation establishes title to affected land in question
  • While this still does not amount to a veto for First Nations of any resource projects, it does mean increased engagement with First Nation over their interests by both governments and industry.

Aboriginal Title

The SCC has finally clarified that Aboriginal title is territorial in nature, and not limited to small intensively used village sites and harvesting sites. The Court even went so far to say that terra nullius, an antiquated doctrine describing land as empty prior to European occupation, has never applied in Canada. An Aboriginal group's right to title will be held to exist if they can prove that occupation must be sufficient, continuous, and exclusive.

The Court held that the first part of the test occupation for Aboriginal title test was met. The Tsilhqot'in were able to demonstrate through evidence from both a common law and Aboriginal perspective. Sufficient occupation requires a context-specific inquiry, which must be proved through strong evidence.

Secondly, the Tsilhqot'in were able to prove that they had continuously occupied the land in question. They proved through evidence that present occupation to establish an interference of pre-sovereignty occupation. This was done through the geographic proximity between sites of recent occupation and historic occupation.

Lastly, the test for exclusive occupation was met. The Tsilhqot'in were able to establish exclusive occupation through proof that others were excluded from the land or by proof that others were only allowed access to the land with the permission of the claimant group.

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Christina Gray is a student-at-law at Aboriginal Legal Services of Toronto. She holds a Juris Doctor and Art History degree from the University of British Columbia. She is a proud member of Lax Kw’alaams Tsimshian Band, but is also of Dene, and Metis descent. 

Photo: Flickr/Colin J. McMechan

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