Friday, June 27, 2014

First Nations & The Supreme Court Land Title Case: What does it mean?

Chief Roger William: The Man who changed Canada
This has been one of the most dramatic weeks in the history of Canada, with the highest court in the land shifting the tectonic plates underlying the country.

Very little economic activity that involves any kind of resource exploration or development in areas where the First Nations have or might obtain title will be carried out in the same way from this day on.

Power equation altered by Supreme Court:

You can find the Supreme Court decision here. It is very clearly written, follows the logical development and extension of the laws governing the relationships between the federal and provincial governments, on the one hand, and the First Nations, and forever alters Canada.

In a remarkable unanimous decision, the Supreme Court of Canada has broken new ground in the power equation that lies at the heart of resource development in Canada. In essence, the highest court in the land decided the first case to award Aboriginal title in land to a First Nation, and effectively created a quasi-veto right for First Nations over the development of resources in most of BC.

With this decision, the First Nations throughout Canada will be able to adopt President Teddy Roosevelt’s maxim: Speak softly, but carry a big stick.

It is difficult to envisage how one could have carved a bigger stick for the First Nations than this decision.

Kathryn Blaze Carlson wrote in the Globe & Mail that:

On Thursday, the country’s top court said aboriginals still own their ancestral lands if they didn’t surrender them through treaties, and that governments and companies must try to obtain consent from title holders for use of the land. Importantly, the ruling also said that where ownership is asserted but hasn’t yet been established, the government needs to consult with the aboriginal group and accommodate it where appropriate.

Professor Dwight Newman in an article in the Financial Post, writes that the decision gives First Nations more control of the decision to develop resources on their lands than they ever had before. He believes that:
This case significantly strengthens the ability of Aboriginal communities with title claims to reject resource development on their lands. 

The bolding in the quotes from the SCC decision are mine.

This is also the take of Sean Fine in the Globe & Mail, who writes:

The Supreme Court of Canada has put aboriginals on a new footing in a landmark ruling that has huge implications for natural-resource industries across the country ...

Aboriginal communities gain important new economic assets, and powerful leverage over development by outsiders, but not a veto ...

In what legal observers called the most important Supreme Court ruling on aboriginal rights in Canadian history – a culmination of all previous rulings – the court determined that native Canadians still own their ancestral lands, unless they signed away their ownership in treaties with government.

And the Supreme Court in its decision spoke about the tension that exists between First Nations and any province seeking to regulate lands claimed by them:

Aboriginal rights are a limit on both federal and provincial jurisdiction.  The problem in cases such as this is not competing provincial and federal power, but rather tension between the right of the Aboriginal title holders to use their land as they choose and the province which seeks to regulate it, like all other land in the province.

However, not everyone agrees that the decision is a game changer:

However, aboriginal lawyer Thomas Isaac, a partner with Osler Hoskin & Harcourt LLP, said the ruling is significant in that it is the first on established aboriginal title, but is site-specific and won't affect projects such as Northern Gateway. "It's not a game changer. It doesn't change the law. It does give further insight, though, into the law."

Summary of the SCC Case:

Who is involved?

Six bands of First Nations, totalling some 3,000 people, have changed the contours of the Canadian economic, social and political space beyond recognition.

This is how the Supreme Court describes the successful First Nations bands:

For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  The federal and provincial governments opposed the title claim.
And further on:

They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped.  They repelled invaders and set terms for the European traders who came onto their land.  From the Tsilhqot’in perspective, the land has always been theirs.

And the size of the claim:

The claim is confined to approximately five percent of what the Tsilhqot’in — a total of about 3,000 people — regard as their traditional territory. The area in question is sparsely populated.  About 200 Tsilhqot’in people live there, along with a handful of non-indigenous people who support the Tsilhqot’in claim to title.  There are no adverse claims from other indigenous groups.  The federal and provincial governments both oppose the title claim.

How did it start?

It started in 1983, writes the SCC:

The case began in 1983 when the B.C. government issued logging permits for land the Tsilhqot'in Nation claimed as its own.

The band said the licences contravened the right of its people to use the land for hunting and fishing. They set up blockades and took the matter to court. Most First Nations communities in B.C. never signed treaties or land agreements, but the band argued it could claim title because the band has traditionally occupied the land since before European settlers arrived.

Chief Roger William, on behalf of the Tsilhqot'in Nation (pronounced Sil-KO-tin), filed an action in 1990 in a case known as the Nemiah Trapline Action. This was followed in 1998 by a second known as the Brittany Triangle Action. The trial ended in 2007, the BC with a judgment in favour of the First Nations; in June 2012 the BC Court of Appeal cuts back the decision, and then in June 2014 the Supreme Court finds that the Appeal Court is wrong, and reinstates the lower court’s decision.

What happened in the 3 courts – the Little Islands issue?

The SCC decision is fascinating in its discussion of the differences between the lower court and the Appeal Court.

The crux of the distinction between the findings of the lower court and that of the Appeal Court revolve around the size of the land that the First Nations should be granted title to.

The lower court agreed on an extensive area; the Appeal Court decided that title should only be granted to little islands of land – a decision supported by the federal and provincial governments, as interveners in the SCC case.

This the dry language of our Supreme Court in describing the High Noon shootout between the lower court and the Appeal Court on the little islands issue:

The trial judge divided the claim area into six regions and then considered a host of individual sites within each region.  He examined expert archeological evidence, historical evidence and oral evidence from Aboriginal elders referring to these specific sites.  At some of these sites, although the evidence did suggest a Tsilhqot’in presence, he found it insufficient to establish regular and exclusive occupancy.  At other sites, he held that the evidence did establish regular and exclusive occupancy.  By examining a large number of individual sites, the trial judge was able to infer the boundaries within which the Tsilhqot’in regularly and exclusively occupied the land.  The trial judge, in proceeding this way, made no legal error. 

As for the Appeal Court, the SCC describes its little islands finding this way:

The Supreme Court of British Columbia held that occupation was established for the purpose of proving title by showing regular and exclusive use of sites or territory within the claim area, as well as to a small area outside that area.  Applying a narrower test based on site-specific occupation requiring proof that the Aboriginal group’s ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established. 

The SCC found that the trial judge was correct, and overruled the Appeal Court’s little islands approach.

Overview of the SCC Decision:

The First Nations long walk to freedom is studded with sign posts in the form of Supreme Court decisions, gradually defining rights and processes, and filling in the blanks. These sign posts include the Calder, Guerin, Sparrow, Delgamuukw and Haida cases.

The SCC summarized these sign posts in the jurisprudential journey as follows:

The jurisprudence just reviewed establishes a number of propositions that touch on the issues that arise in this case, including:
•                     Radical or underlying Crown title is subject to Aboriginal land interests where they are established.
•                     Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits.
•                     Governments can infringe Aboriginal rights conferred by Aboriginal title but only where they can justify the infringements on the basis of a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.
•                     Resource development on claimed land to which title has not been established requires the government to consult with the claimant Aboriginal group.
•                     Governments are under a legal duty to negotiate in good faith to resolve claims to ancestral lands.

Turning to the case before it, the SCC summarized the issues this way:

These reasons conclude:
•                     Aboriginal title flows from occupation in the sense of regular and exclusive use of land.
•                     In this case, Aboriginal title is established over the area designated by the trial judge.
•                     Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.
•                     Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.
•                     Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group; for purposes of determining the validity of provincial legislative incursions on lands held under Aboriginal title, this framework displaces the doctrine of interjurisdictional immunity.
•                     In this case, the Province’s land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot’in people.

Where a claim of title has not been settled, the level of consultation and accommodation required varies with each case, wrote the SCC:

The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

The 7 New Growth Industries:

The SCC decision may be understood if we look at the 7 new growth industries that the decision is bound to kick-start.

1          Treaty analysis:

A whole industry will flourish around the interpretation of the many treaties entered into with the First Nations in many provinces. The key question is simple, although the answers are anything but simple: Did these treaties provide for the First Nations to transfer their title to the lands?

Some reports talk about the latest SCC decision as applying only to those First Nations who have not entered into treaties, but this is simplistic: the SCC is very precise, and held that only those treaties that did amount to a transfer of title from the First Nations escape the latest decision.

If a treaty did not transfer title, then the First Nations would retain some or all of their title, and the decision of June 2014 would apply to them as well.

As Kathryn Blaze Carlton reports, some First Nations are actively working to ensure that their treaties are properly interpreted as not ceding title to their land. Bob Rae is working for one such First Nations:

“Fundamentally, what the court is saying is that governments and companies have to take aboriginal rights seriously,” said former Liberal MP Bob Rae, the chief negotiator for the Matawa First Nations, which is in talks with Ontario about opening their traditional land to the massive Ring of Fire mineral development.

Mr. Rae said the Treaty 9 nations he represents view the treaty as an agreement to share their land with the Crown, not surrender it. “We fully expect the governments of Ontario and Canada to respect the spirit and broader meaning of the treaty,” said Mr. Rae, reached in the remote Matawa community of Neskantaga.

Of all the provinces, BC is most affected by the new SCC decision, because there are few treaties:

The majority of B.C. First Nations have yet to sign treaties, creating uncertainty surrounding land and resource ownership, use and management. The federal and provincial governments, along with the First Nations Summit, launched the B.C. treaty process in 1993. But to date, only two treaties – the Maa-nulth and Tsawwassen – have been implemented. Others are at various stages in the process.

In the Atlantic provinces, the Peace and Friendship treaties did not surrender  Aboriginal rights to land or resources, and so the SCC decision applies there, too.

Manitoba is also impacted:

The high court's decision could have a huge impact in Manitoba for the Dakota and Sioux, who don't have treaties and for Treaty 1, 2 and 3 First Nations, says a University of Manitoba law professor with 10 years' experience in aboriginal law.

"This is a really big day," said Aimé Craft. "Their treaties are not surrenders of land but agreements to share," she said. "They don't have a blanket extinguishment clause." ...

That could give First Nations a larger slice of the economic pie.

"The immediate thought is industry and commercial activity," said Craft. "Forestry is huge in Manitoba, the lakes are used for commercial fishing -- there's mining and natural-resources extraction," said Craft.

Across Canada, some 100 self-government and land claim negotiations are taking place.

2         Title Identification Processes (TIP)

Say hello to the enlarged industry of title identification!

To gain acceptance by the courts (and by governments) of First Nations title to larger areas, as happened in this case, requires a lot of detailed, painstaking work:

But proving occupancy and attachment to the land that dates so far back is difficult and expensive, said Craft. The courts like historical, archival records, but prior to European contact there's just oral history and archeological evidence. In land-claim battles, a slew of experts from both sides will debate that evidence, said the lawyer-turned-professor who's represented First Nations going up against the Crown in court.

The SCC commented on the volume of work done in the trial court:

The trial judge was faced with the herculean task of drawing conclusions from a huge body of evidence produced over 339 trial days spanning a five-year period.  Much of the evidence was historic evidence and therefore by its nature sometimes imprecise.  The trial judge spent long periods in the claim area with witnesses, hearing evidence about how particular parts of the area were used.  Absent demonstrated error, his findings hould not be disturbed.

This was the first Supreme Court case to decide how title is to be decided, as the SCC wrote:

How should the courts determine whether a semi-nomadic indigenous group has title to lands?  This Court has never directly answered this question. The courts below disagreed on the correct approach.  We must now clarify the test.

The SCC set out the general test:

The test was set out in Delgamuukw, per Lamer C.J., at para. 143:

In order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

The enormity of the work required is a function of the area in dispute; the latest SCC decision has substantially enlarged the areas that will be subject to negotiation for agreement on title, or decided by the trial courts – per the SCC:

The trial judge was correct in finding that the Tsilhqot’in had established Aboriginal title to the claim area at issue.  The claimant group, here the Tsilhqot’in, bears the onus of establishing Aboriginal title.  The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  Aboriginal title flows from occupation in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of this appeal, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

This test of what constitutes title resulted in the SCC decision to reject the Appeal Court’s small islands approach, and accept the sea of title approach of the trial court, a significant widening of the area:

The Court of Appeal disagreed and applied a narrower test for Aboriginal title — site-specific occupation.  It held that to prove sufficient occupation for title to land, an Aboriginal group must prove that its ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty...  

For semi-nomadic Aboriginal groups like the Tsilhqot’in, the Court of Appeal’s approach results in small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping.  By contrast, on the trial judge’s approach, the group would enjoy title to all the territory that their ancestors regularly and exclusively used at the time of assertion of European sovereignty.

In considering the clash between Western common law concepts, and Aboriginal cultural concepts, the SCC expressly warned against the trap of square boxes in our common law:

In my view, the concepts of sufficiency, continuity and exclusivity provide useful lenses through which to view the question of Aboriginal title.  This said, the court must be careful not to lose or distort the Aboriginal perspective by forcing ancestral practices into the square boxes of common law concepts, thus frustrating the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.  Sufficiency, continuity and exclusivity are not ends in themselves, but inquiries that shed light on whether Aboriginal title is established.

How much occupancy is sufficient?

The nature of the land itself bears on this inquiry:

Sufficiency of occupation is a context-specific inquiry ... Here, for example, the land, while extensive, was harsh and was capable of supporting only 100 to 1,000 people.  The fact that the Aboriginal group was only about 400 people must be considered in the context of the carrying capacity of the land in determining whether regular use of definite tracts of land is made out.

The First Nation must have sent signals out to others in the area that it regarded the land they are claiming as theirs:

To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes.  This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal.  There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.  As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land.  Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation.  The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic ... Apart from the obvious, such as enclosing, cultivating, mining, building upon, maintaining, and warning trespassers off land, any number of other acts, including cutting trees or grass, fishing in tracts of water, and even perambulation, may be relied upon. The weight given to such acts depends partly on the nature of the land, and the purposes for which it can reasonably be used. [Emphasis added by the SCC.]

What about the test of continuity?

This is the SCC finding:

The concept of continuity does not require Aboriginal groups to provide evidence of an unbroken chain of continuity between their current practices, customs and traditions, and those which existed prior to contact (Van der Peet, at para. 65).  The same applies to Aboriginal title. Continuity simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.  This is a question for the trier of fact in each case.

What about exclusivity of occupation?

The SCC also cast light on the test of exclusivity of occupation (especially relevant to the title to land occupied by more than one First Nation band):

Exclusivity should be understood in the sense of intention and capacity to control the land.  The fact that other groups or individuals were on the land does not necessarily negate exclusivity of occupation.  Whether a claimant group had the intention and capacity to control the land at the time of sovereignty is a question of fact for the trial judge and depends on various factors such as the characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land in question.  Exclusivity can be established by 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.  The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.  Even the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control. 
3          ABBC – Anywhere But British Columbia

Given the absence of treaties in BC that ceded land, the biggest disputes will probably arise in this province. If any company wishes to transport products over land subject to title claims, it might have more success in looking to areas where titles are not in dispute. Could this result in more product being moved through pipelines going north or east rather than west over BC? We will find out in the next decade.

4         Getting to Yes in Treaty Negotiations

It is fair to say that all treaties currently being negotiated will have to reconsidered. The pattern in BC has been to negotiate title over a very small percentage of the lands used by the First Nations – around 5%.

The new SCC decision will serve as a template for all future title discussions, and negotiated or court-decided area of lands subject to First Nations title will be substantially increased from these past treaties.

Pressure to negotiate treaties will increase:

A landmark decision involving aboriginal rights and title in British Columbia is already having ripple effects, with one First Nation saying it would file a new court case in its wake amid speculation that the ruling could shift a sluggish treaty-making process into high gear.

The decision – the first to recognize aboriginal title to a specific tract of land – is expected to put pressure on both the federal and provincial governments to negotiate treaties in B.C.

However, while this SCC decision will make governments and industry keener to negotiate treaties in order to achieve greater certainty, the decision has substantially increased the power of the First Nations, and thus decreased their desire to sign treaties that could gain less for them than recourse to the courts.

5          Expertise in shaping compelling and substantial government objectives under Section 35

Once title is proven, industries wishing to develop in a manner that impacts the areas subject to First Nations title have a stark choice: Either the federal and/or provincial governments obtain consent from the First Nations OR the governments have to relay on the overrider in Section 35 that allows them to proceed without consent if they meet the compelling and substantial government objective and fiduciary behaviour tests.

The SCC decision leaves open several questions, which will no doubt wend their way through the three layers of courts, until the SCC has to decide them.

The first question is what the overrider really means.

Here’s the SCC description of the overrider clause:

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982.

This requires demonstrating both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group. 

This means the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty infuses an obligation of proportionality into the justification process: the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact).

Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  This s. 35 framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians. 

And further, the SCC commented on the overrider conditions:

When the duty to consult arises:

The duty to consult is a procedural duty that arises from the honour of the Crown prior to confirmation of title.  Where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Aboriginal title and, if appropriate, accommodate the Aboriginal right.  The duty to consult must be discharged prior to carrying out the action that could adversely affect the right...

How much consultation and accommodation is required:

The degree of consultation and accommodation required lies on a spectrum as discussed in Haida.  In general, the level of consultation and accommodation required is proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right.  “A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties” (para. 37).  The required level of consultation and accommodation is greatest where title has been established.  Where consultation or accommodation is found to be inadequate, the government decision can be suspended or quashed...

Aboriginal view of compelling and substantial objective of the government to be considered:

I agree with the Court of Appeal that the compelling and substantial objective of the government must be considered from the Aboriginal perspective as well as from the perspective of the broader public.  As stated in Gladstone, at para. 72:

[T]he objectives which can be said to be compelling and substantial will be those directed at either the recognition of the prior occupation of North America by [A]boriginal peoples or — and at the level of justification it is this purpose which may well be most relevant — at the reconciliation of [A]boriginal prior occupation with the assertion of the sovereignty of the Crown.  [Emphasis added.]

As Delgamuukw explains, the process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d’ĂȘtre of the principle of justification.  Aboriginals and non-Aboriginals are “all here to stay” and must of necessity move forward in a process of reconciliation (para. 186).  To constitute a compelling and substantial objective, the broader public goal asserted by the government must further the goal of reconciliation, having regard to both the Aboriginal interest and the broader public objective.

Specific government objectives mentioned by the SCC:

[83]                          What interests are potentially capable of justifying an incursion on Aboriginal title?  In Delgamuukw, this Court, per Lamer C.J., offered this:
In the wake of Gladstone, the range of legislative objectives that can justify the infringement of [A]boriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by [A]boriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive [A]boriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title.  Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis. [Emphasis added; emphasis in original deleted; para 165]
And now for the environmental, cumulative effect, zinger:

Consider this statement by the SCC:

[86]                          First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group.  This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.

6         Economic Reconciliation Tools

What about “benefits” and “economic fruits” from the land claimed?

Consider these words from the SCC decision, and ask yourself what the words “benefits” and “economic fruits” mean:

[88]                          In summary, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to one carve-out — that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.  Government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group ...

With the declaration of title, the Tsilhqot’in have now established Aboriginal title to the portion of the lands designated by the trial judge with the exception as set out in para. 9 of these reasons.  This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits.  As we have seen, this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land.

Just how far does this right to benefit and economic fruits extend?

This is the conclusion the SCC reached in the case decided:

  • The Crown’s duty to consult was breached when Crown officials engaged in the planning process for the removal of timber.  The inclusion of timber on Aboriginal title land in a timber supply area, the approval of cut blocks on Aboriginal title land in a forest development plan, and the allocation of cutting permits all occurred without any meaningful consultation with the Tsilhqot’in ...

Why is this area of importance to Canada’s future development? Clearly, neither the Constitution nor all the Supreme Court decisions have provided for an absolute veto right for First Nations on economic developments in lands in which they have title.

However, once they have title, their consent is required (unless the overrider clause is used by the two levels of government).

What does this mean for future pipelines, mines, forestry operations, dams etc?

Consider this take on the state of play:

Mr. Plant, also a board member at Steelhead LNG Corp., emphasized that resource extraction remains viable in British Columbia, but governments and businesses need to take aboriginal interests more seriously.

"The aboriginal owners of those lands need to be included in the arrangements because without their consent, it's going to be very difficult to develop aboriginal title lands," he said. "If First Nations decide that they don't want a certain type of economic development activity on their lands because they don't want the impact from that activity, this case makes it pretty close to impossible to imagine a situation where that activity will be permitted."

Clearly, the requirement for obtaining the consent of the First Nations who have title to lands does not require a simple, up-and-down Yes from the First Nations. They clearly  have a right to add conditions to their consent, such as those that might be needed to protect the use of and benefits and economic fruits of the land in question for future generations of First Nations.

They also must have a right to decide who does what when it comes to the management of the land.

How far does this right extend? What conditions can the First Nations impose to their consent?

In my view, the latest SCC decision, read with earlier ones, gives First Nations powerful rights to demand substantial conditions as a condition for their consent to developments such as mining, forestry, dams, pipelines and other encroachments on their land.

Such substantial conditions, in my view, most likely extend to the obtaining of substantial equity positions  in all such developments, for minimal equity payments by the First Nations.

Another observer also appears to be thinking along similar lines, in discussing the use of “economic reconciliation tools”:

Interveners in the court case, including the Business Council of British Columbia, issued statements Thursday to emphasize engagement and reconciliation with First Nations. "The business council notes that our member companies have, for the past two decades, negotiated and implemented hundreds of agreements that seek to provide investment certainty and shared benefits with First Nations," said council president Greg D'Avignon. "In addition, the government of British Columbia has a significant number of economic reconciliation tools, including revenue sharing."

Widen the use of economic reconciliation tools from simply those that the government of British Columbia has, to those that any developers of the mines, tar sands, forestry projects, dams and pipelines, and we probably have identified the space of future extensive negotiations.

7          Accelerated Nation Building by First Nations

The SCC decision will dramatically improve the economic lot of First Nations who have title to, or claims to title to, ancestral lands.

So we expect a quantum jump forward for the social and economic advancement of those communities:

“This case is about us regaining our independence – to be able to govern our own nation and rely on the natural resources of our land,” said Chief Roger William of the Xeni Gwet’in, one of the six groups that make up the Tsilhqot’in.

Recognition of land title should result in a significant transfer of wealth from economic and governmental organizations who wish to use the land, to the First Nations.


  1. It high time the Supreme Court be politicized and so subjected to political control. They have effectively robbed Canadians of billions of dollars in revenues and given it over to a single ethnic group.

  2. Fine summary and analysis, Glenn. Thanks

  3. This is certainly a wonderful day for Canada's First Nations Peoples to regain some of what has been stolen from them by the past imperial colonialists and the current Harper government. The other day I met a young First Nations man in downtown Calgary who told me how he is suffering in todays society that is ruled by the white man who decimated nearly every last piece of Aboriginal culture and history in Canada. This young man's grandparents were victimized by the residential school system and as a result, this young man battles alcoholism and drug use daily. He can't even find a job cause no company will hire Indians due to stereotyping he told me. Canadians must embrace our First Nations People as they are the only living link to the history of this country. The Conservative government genocide must stop!

  4. Theon RatticusJune 29, 2014 7:58 pm

    So what now? Wasn't it the supreme court that kept saying that treaties had to be negotiated? What band will sign a treaty now that they can go to court and get title? If the argument is that no treaties were signed and First Nations people were not conquered then is the only route left for non-aboriginal Canadians a war of conquest? I don't think the majority of Canadians will accept a Canada held hostage to the whims of small minority no matter how "just" the supreme court thinks it is.

  5. Theon, the Supreme Court decisions are remarkable in the way that the judges have been very, very careful to stress that the interests of the First Nations and the rest of Canada have to be balanced. The SCC talks of reconciliation of interests; it talks of the rights of title of the First Nations but gives weight to Section 35 of the Constitution, which provides for infringements on those title rights if the government has a compelling and substantial objective. From the judgment, this is one passage:

    Aboriginals and non-Aboriginals are “all here to stay” and
    must of necessity move forward in a process of reconciliation (para. 186).
    To constitute a compelling and substantial objective, the broader public goal asserted by the government must further the
    goal of reconciliation, having regard to both the Aboriginal interest and the
    broader public objective.

    And here is another quote:

    In my opinion, the development of agriculture, forestry, mining, and
    hydroelectric power, the general economic development of the interior of British
    Columbia, protection of the environment or endangered species, the building of
    infrastructure and the settlement of foreign populations to support those aims,
    are the kinds of objectives that are consistent with this purpose and, in
    principle, can justify the infringement of [A]boriginal title.

    The critical reasoning of the SCC is that the Government of Canada, and the Canadian people through their provincial legislatures, agreed to change the basic constitution of Canada (the bedrock rules that govern how Canadians relate to each other, their government relates to the citizens) to incorporate in the Constitution a recognition and preservation of Aborginal rights, as at the time of conquest by non-Aboriginals.

    There is no mention at all in the Constitution or in the various SCC cases of the Aborginals holding hostage the rest of Canada. The Court interprets the Constitutional protective clauses as being a serious commitment to preserve Aboriginal rights, but also sees this protection as including a reconciliation of interests.

    Check the list in the SCC case of government objectives that might in a case be sufficient for infringements of Aboriginal rights: it is a very wide list. Think about these, for starters: developing infrastructure; and the economic development of the interior of BC. This broad list of potentially justifiable infringements means there is little room for holding the governments hostage.


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