The Chilcotin, British Columbia

On Thursday, June 26, 2014, the constitutional framework of Canada experienced an earthquake. Whether it was an earthquake of Richter scale 7 or 8, I cannot say. But let no one think otherwise – this was a big one. Whether it was the Big One or not will remain to be seen. For the first time in Canadian history, there has been a finding that a First Nation has established their claim to Aboriginal title. The Supreme Court of Canada decided in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 that the Tsilhqot’in Nation has proven its Aboriginal title to a swath of some 1900 square kilometers in the interior of British Columbia. What precipitated the action in which the claim was made was the Province’s issuance of timber harvest licences without consultation to the First Nation in question. Now, not only are the timber harvest licences invalid but the provincial Forest Act is now constitutionally inapplicable to those 1900 square kilometres. This is just the first claim of hundreds. After this decision, governments across the country are running back to check the claims of the First Nations resident in their territories – just how strong are those claims to Aboriginal title? – did those treaties really extinguish Aboriginal title or were they some sort of lesser treaty? – have the First Nations been consulted and accommodated in accordance with the Court’s dictates?

The Chief Justice spoke for the full court. In a relatively short 153 paragraph judgment that was clearly crafted with care and that united the various themes and principles that have been articulated in previous cases, she pronounced on the requirements for proving Aboriginal title, the rights conferred by Aboriginal title, the duties owed by the provincial government at the time of infringement and the ongoing ability of the provincial government to legislate and govern in respect of the Aboriginal title lands. While I cannot do it justice in a single post, I will touch upon some of the highlights and then discuss what I think this judgment means in the long term.

Before I go there, however, I want to present the thesis that this is not simply an Aboriginal law case focussing on Aboriginal title: it is fundamentally a constitutional law case. Because of s. 35 of the Constitution Act, 1982, in my view, the import of this decision is that the First Nations of this country must now be engaged as full actors in our constitutional framework and not merely as historical irritants that must be somehow assuaged before moving on to getting the business of the country done. This is what makes this case so earthshaking in my view.

Constitutional – not just Aboriginal

I will start with reproducing Part II of the Constitution Act, 1982, containing ss. 35 and 35.1, provisions that many lawyers who work routinely with the Charter may not have looked at for some time:

PART II

RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

Recognition of existing aboriginal and treaty rights

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

These provisions and specifically, s. 35, gave unequivocal constitutional status to Aboriginal and treaty rights of the Aboriginal peoples of Canada. The constitutional protection so afforded by s. 35 cannot be taken away or amended except by way of a constitutional amendment that is preceded by a constitutional conference of all first ministers and representatives of the Aboriginal peoples. In other words, these provisions should be considered to be permanent features of the Canadian constitutional landscape. Section 35 infuses and informs this judgment. In my opinion, it is this provision that compels some of the constitutional conclusions that the Chief Justice arrives at. Now, let us turn to the Chief Justice’s analysis in Tsilhqot’in Nation.

As I noted earlier, the Chief Justice outlined the test for Aboriginal title. There has to be sufficient use of the lands in question, continuity of use of the lands, and exclusiveness in the First Nation’s occupation of the lands. Notwithstanding the small number of the First Nation inhabitants at the time of contact (estimated to be 400), and notwithstanding the fact that the First Nation was semi-nomadic, the Chief Justice agreed with the trial judge that those three requirements had been made out. Once that finding had been made, however, the constitutional implications are immediate. The Chief Justice stated [paras. 90-92]:

[90] After Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding Aboriginal group to developments on the land. Absent consent, development of title land cannot proceed unless the Crown has discharged its duty to consult and can justify the intrusion on title under s. 35 of the Constitution Act, 1982. The usual remedies that lie for breach of interests in land are available, adapted as may be necessary to reflect the special nature of Aboriginal title and the fiduciary obligation owed by the Crown to the holders of Aboriginal title.

[91] The practical result may be a spectrum of duties applicable over time in a particular case. At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.

[92] Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward. For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.

[Emphasis added]

So once Aboriginal title is found, not only are exercises of governmental, executive power limited by s. 35 imposed duty to consult and requirement of appropriate justification, but so too is the exercise of the legislative power. As we will see, in this case, the provincial Forest Act ceased to have application to the Aboriginal title lands of the Tsilhqot’in Nation.

When does Provincial Laws Apply to Aboriginal Title Lands and When Do They Not?

The Chief Justice clarified that provincial laws of general application continue in force over the Aboriginal title lands unless limited by s. 35 of the Constitution Act, 1982 or by the federal power to legislate in respect of Indians and lands reserved for Indians under s. 91(24) of the Constitution Act, 1867 [paras. 102-103]:

[102] As a general proposition, provincial governments have the power to regulate land use within the province. This applies to all lands, whether held by the Crown, by private owners, or by the holders of Aboriginal title. The foundation for this power lies in s. 92(13) of the Constitution Act, 1867, which gives the provinces the power to legislate with respect to property and civil rights in the province.

[103] Provincial power to regulate land held under Aboriginal title is constitutionally limited in two ways. First, it is limited by s. 35 of the Constitution Act, 1982. Section 35 requires any abridgment of the rights flowing from Aboriginal title to be backed by a compelling and substantial governmental objective and to be consistent with the Crown’s fiduciary relationship with title holders. Second, a province’s power to regulate lands under Aboriginal title may in some situations also be limited by the federal power over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867.

She then indicated that the test employed in R. v. Sparrow, [1990] 1 SCR 1075 would be provide important factors to consider when determining whether there had been an infringement of Aboriginal title or not. Those factors, however, would not be determinative [104-106]:

[104] This Court suggested in Sparrow that the following factors will be relevant in determining whether a law of general application results in a meaningful diminution of an Aboriginal right, giving rise to breach: (1) whether the limitation imposed by the legislation is unreasonable; (2) whether the legislation imposes undue hardship; and (3) whether the legislation denies the holders of the right their preferred means of exercising the right (at p. 1112). All three factors must be considered; for example, even if laws of general application are found to be reasonable or not to cause undue hardship, this does not mean that there can be no infringement of Aboriginal title. As stated in Gladstone:

Simply because one of [the Sparrow] questions is answered in the negative will not prohibit a finding by a court that a prima facie infringement has taken place; it will just be one factor for a court to consider in its determination of whether there has been a prima facie infringement. [p.43]

[105] It may be predicted that laws and regulations of general application aimed at protecting the environment or assuring the continued health of the forests of British Columbia will usually be reasonable, not impose an undue hardship either directly or indirectly, and not interfere with the Aboriginal group’s preferred method of exercising their right. And it is to be hoped that Aboriginal groups and the provincial government will work cooperatively to sustain the natural environment so important to them both. This said, when conflicts arise, the foregoing template serves to resolve them.

[106] Subject to these constitutional constraints, provincial laws of general application apply to land held under Aboriginal title.

When does a Statute Apply to Aboriginal Title Lands?

The Chief Justice said that it was simply a question of statutory interpretation as to whether the legislature had intended that the Forest Act to apply to Aboriginal title lands.

(On this point, I must pause parenthetically to note that, for many statutes, the British Columbia legislature had no intention of any sort in respect of Aboriginal title lands. For decades, British Columbia denied that Aboriginal title even existed so, for many of the statutes which have older origins, there could be in fact no legislative contemplation of Aboriginal title lands. I think the Court’s exercise in statutory interpretation of the Forest Act, an Act that has been amended many times but that has very old origins in British Columbia, involved the use of a legal fiction.)

The Chief Justice noted that timber licences could only be issued under the Forest Act for “Crown timber” which is timber that is on “Crown land”. “Crown land” was “land … vested in the Crown” and specifically did not include “private land”. Aboriginal title land was not mentioned by the Act (not surprisingly). Using analogies taken from property law, the Chief Justice held that “Aboriginal title vests the lands in question in the Aboriginal group” [para. 112]. But until the claim to Aboriginal title had been proven, the Province was entitled to treat the lands as Crown lands but subject to the requirement that the Province consult the First Nations making claim to those lands in accordance with the Sparrow test [114-116]:

[114] It seems clear from the historical record and the record in this case that in this evolving context, the British Columbia legislature proceeded on the basis that lands under claim remain “Crown land” under the Forest Act, at least until Aboriginal title is recognized by a court or an agreement. To proceed otherwise would have left no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value. Looked at in this very particular historical context, it seems clear that the legislature must have intended the words “vested in the Crown” to cover at least lands to which Aboriginal title had not yet been confirmed.

[115] I conclude that the legislature intended the Forest Act to apply to lands under claims for Aboriginal title, up to the time title is confirmed by agreement or court order. To hold otherwise would be to accept that the legislature intended the forests on such lands to be wholly unregulated, and would undercut the premise on which the duty to consult affirmed in Haida was based. Once Aboriginal title is confirmed, however, the lands are “vested” in the Aboriginal group and the lands are no longer Crown lands.

[116] Applied to this case, this means that as a matter of statutory construction, the lands in question were “Crown land” under the Forest Act at the time the forestry licences were issued. Now that title has been established, however, the beneficial interest in the land vests in the Aboriginal group, not the Crown. The timber on it no longer falls within the definition of “Crown timber” and the Forest Act no longer applies. I add the obvious — it remains open to the legislature to amend the Act to cover lands held under Aboriginal title, provided it observes applicable constitutional restraints.

Thus, upon the declaration of Aboriginal title, the Forest Act ceased to apply. This poses for me an interesting legal question. The Aboriginal title existed before the declaration. The difference is that it has only now been proven to exist. So if the Aboriginal title pre-existed the declaration, how can the Provincial government have jurisdiction over it as “Crown lands”. They clearly are not and have never been Crown lands. In my view, the Court felt it was necessary to use this legal sleight of hand to ensure that there is not a legal regulatory vacuum up until the time that the claim for Aboriginal title is proven.

Does the Constitution Oust the Forest Act?

The Chief Justice dealt with the question as to whether s. 35 ousted the Forest Act. In other words, given that Aboriginal title had been found, was it now impossible for the Province to legislate in respect of the lands so affected? The Chief Justice held that it was not impossible but that the laws so passed would have to abide the requirements imposed by s. 35: namely that a substantial and pressing objective is driving the Province to pass such legislation and that the impairment of the Aboriginal title is minimal and proportionate. This legislative action would have to be preceded by a proper exercise of the government’s duty to consult the First Nation and to accommodate.

The Chief Justice also dispensed with the application of interjurisdictional immunity as a doctrine to be used in Aboriginal title cases. In her view, it does not apply and the Sparrow analysis required by s. 35 should be used.

Going Forward

The Court did not deal with the issue as to how the Aboriginal laws or legal systems which preceded contact are affected by s. 35. The interrelationship between provincial, federal, Canadian constitutional and Aboriginal legal systems remains to be worked out. But it would appear that, if Aboriginal title pre-existed assertions of British sovereignty, then so did Aboriginal legal systems. And if we are to respect Aboriginal title, we may also have to respect some or all of Aboriginal legal systems. That is another issue for another day.

First Nations will press forward with their claims of Aboriginal title, emboldened by the Tsilhqut’in Nation’s success. Others will revisit their treaties. Through judicial determinations and negotiated settlements, vast tracts of British Columbia’s, and likely other provinces’, territories will be found to be subject to valid claims of Aboriginal title.

But the First Nations have small populations. The world today is far more complex than it was 100 or 200 years ago. So they need resources to manage these lands for their benefit, and indirectly for the benefit of Canadian and global societies at large. Their forests will help to act as a carbon sink. Their rivers will provide spawning grounds for tomorrow’s fish. We are all interconnected and interdependent. It is imperative, in my view, that Canadian governments offer to assist the First Nations with provision of financial and other resources for their husbandry and administration of these Aboriginal title lands. The word “reconciliation” appeared multiple times in the text of the judgment. That is how Canadians, and Canadian constitutional lawyers, should view the thrust of this decision: a step and a direction by the country’s highest country to move us towards reconciliation between the Aboriginal peoples of Canada and those who are not Aboriginal.

June 26, 2014 will be marked by historians as a day when Canada changed. I believe it is for the better.

I remain

Constitutionally yours

Arthur Grant