May 15, 2017

Case Brief: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII)

Facts: BC issued a license to harvest trees in Appellant’s territory. The Appellant objected which led to negotiations with BC. Negotiations came to an impasse. The Appellant sued BC and claimed for Aboriginal Title (AT). Trial Judge found Appellants were entitled to declaration of AT, but for procedural reasons the TJ refused to make the declaration. BC appealed. BCCA held AT had not been established, but that it might exist to specific sites. Appellants appealed to SCC.

Issues: Is AT established? What rights does AT confer? Did BC breach its Duty to Consult?

Holding: Appeal allowed. Declaration of AT granted. BC breached its duty to consult.

Reasoning: Per McLachlin CJ (for the court): The test for AT should not be considered independently but rather as related aspects of a single concept. The sights must remain on the ultimate task, which is to identify how rights and interests possessed under traditional law and custom can find expression in common law (CL) terms. This requires considering the Aboriginal perspective, which must not be distorted by forcing ancestral practices into CL concepts. The goal is to translate pre-sovereignty Aboriginal interests into equivalent modern legal rights. When AT is established, it confers numerous rights which includes the right to control how the land is used. Gov’t incursions onto AT lands that are not consented to must be undertaken in accordance with the Crown’s procedural duty to consult, it must be justified, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.

The Test for AT: AT is based on “occupation” prior to the assertion of sovereignty. Delgamuukw affirms a “territorial use-based approach” to establishing AT, where the claimant group must show its occupation possesses the following three characteristics: (i) sufficient occupation of the land claimed to establish title at the time of assertion of sovereignty, (ii) continuity of occupation (where present occupation is relief on), and (iii) exclusive historic occupation.
What rights does AT confer?: AT confers the right to the benefits associated with the land: to use it, enjoy it and profit from its economic development. As well, it includes ownership rights similar to those with fee simple, including the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; the right to proactively use and manage the land; and, the right to control the land.
Breach of the Duty to Consult: Before AT is declared, the honour of the Crown requires the Crown to consult and accommodate the interests of the potential AT holders.
Provincial Laws of General Application: Provincial laws that regulate AT lands are constitutionally limited by s. 35 which acts as a limit on provincial jurisdiction.

The Test for AT:
(i) Sufficiency: Sufficiency lied at the heart of this appeal. What constituted sufficient occupation to ground title? This issue arose because the Appellant’s were semi-nomadic. The question for all parts of the AT test must be approached from both the “CL perspective” (which imports the idea of possession and control of the lands) and “Aboriginal perspective” (which focuses on laws, practices, customs and traditions of the group). The inquiry is context-specific. The claimant group must show it historically acted in a way that would communicate to third parties that it held the land for its own purposes. The kinds of acts showing sufficient occupation are dependent on the manner of life of the people and the nature of the land. Sufficiency is similar to an intention to occupy or hold land, however what a court considers “occupation” must give equal weight to the perspective of the claimant group which, depending on its size and manner of living, might conceive of possession of land differently. Sufficiency is a question of fact depending on all the circumstances, in particular the nature of the land and the manner in which it is commonly used.
(ii) Continuity: Continuity between present and pre-sovereignty occupation must be established, however the claimant group need not produce an unbroken chain of occupation, rather the evidence of present occupation must be rooted in pre-sovereignty times to establish the inference.
(iii) Exclusivity: Exclusive occupation at the time of sovereignty requires showing an intention and capacity to retain exclusive control over the land. It depends on various factors such as the context, the characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land in question. Other peoples being on the same land at the same time does not negate exclusivity. If others were excluded from the land, or if others were on the land by permission, exclusivity can still be established.
What rights does AT confer?: AT confers ownership rights similar to those with fee simple, however it comes with an important restriction: it is collective title held not only for the present generation but for all succeeding generations. The right to control the land means that govts and others seeking to use the land must obtain the consent of the AT holders. If the AT holders do not consent to the use, the govt’s only recourse is to establish the proposed incursion on the land is justified under s. 35. To show the proposed incursion is justified under s. 35, the govt must show: (1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the govt action is consistent with the Crown’s fiduciary obligation to the group.
Breach of the Duty to Consult: The failure to adequately consult can be avoided by obtaining the consent of the Aboriginal group, whether or not AT is declared. This is always the best course of action. This appeal could have been disposed of on the breach of the duty to consult however the SCC decided to elucidate on AT.
Provincial laws of General Application: Provincial laws are subject to the s. 35 infringement and justification framework (“Section 35-Sparrow Approach”). In assessing the constitutionality of an impugned provincial law, the Section 35-Sparrow Approach must be used, which is a carefully calibrated test that reconciles provincial laws with ARs per s. 35. This approach is also a fairer and more practical assessment from a policy perspective in comparison to the Doctrine of Interjurisdictional Immunity, which has no further role to play regarding ARs. It no longer matters whether ARs, which includes AT, fall within the jurisdiction of s. 91(24) because ARs are a limit on both federal and provincial jurisdiction. Neither the provinces nor the federal govt are permitted to legislate in a way that results in a meaningful diminution of ARs, unless such an infringement is justified and is consistent with the Crown’s fiduciary duty owed to the Aboriginal group.

Dissenting Opinion(s) Reasoning: None.