The Supreme Court of Canada has granted declaration of aboriginal title to more than 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation, the first time the court has made such a ruling regarding aboriginal land.

The unanimous 8-0 decision released Thursday resolves many important legal questions, such as how to determine aboriginal title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.

The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nations lands.

‘It only took 150 years, but we look forward to a much brighter future. This without question will establish a solid platform for genuine reconciliation to take place in British Columbia.‘— Grand Chief Stewart Phillip, president of Union of B.C. Indian Chiefs

The case focused on the Tsilhqot’in First Nation’s claim to aboriginal title over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.​

A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot’in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot’in must identify specific sites where its people once lived, rather than assert a claim over a broad area.

The Tsilhqot’in, a collection of six aboriginal bands that include about 3,000 people, argued the court’s decision failed to recognize the way its people had lived for centuries.

The court heard the Tsilhqot’in people were “semi-nomadic,” with few permanent encampments, even though they saw the area as their own and protected it from outsiders.

Establishes meaning of title

In its decision, Canada’s top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

The Supreme Court of Canada has recognized the Tsilhqot’in First Nation’s aboriginal title over a wide area to the south and west of B.C.‘s Williams Lake, which it considers its traditional territory. (CBC)

The court also established what title means, including the right to the benefits associated with the land and the right to use it, enjoy it and profit from it.

However, the court declared that title is not absolute, meaning economic development can still proceed on land where title is established as long as one of two conditions is met:

• Economic development on land where title is established has the consent of the First Nation.

• Failing that, the government must make the case that development is pressing and substantial, and meet its fiduciary duty to the aboriginal group.

In other words, the decision places a greater burden on governments to justify economic development on aboriginal land.

The court also makes it clear that provincial law still applies to land over which aboriginal title has been declared, subject to constitutional limits.

‘Absolutely electrifying’

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, was with Chief Roger William, who brought the case, and other Tsilhqot’in chiefs when they learned of the top court’s decision, and said the mood in the room was “absolutely electrifying.”

“We all heard the decision at the same moment, and the room just erupted in cheers and tears. Everybody is absolutely jubilant. It’s very emotional,” Phillip told CBC News.

Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs smiles during a news conference in Vancouver, after the Supreme Court ruled in favour of the Tsilhqot’in First Nation, granting it land title to 438,000 hectares of land. (Darryl Dyck/Canadian Press)

“It only took 150 years, but we look forward to a much brighter future. This, without question, will establish a solid platform for genuine reconciliation to take place in British Columbia.

“I didn’t think it would be so definitive,” Phillip added. “I was actually prepared for something much less. It’s not very often that I’m without words, and I’m quite overwhelmed at the moment.”

Future pipelines?

Aboriginal Affairs Minister Bernard Valcourt said in a statement Thursday that the government will review the “complex and significant issues” in the decision.

“Our government believes that the best way to resolve outstanding aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians,” Valcourt said in the statement, adding that the government has concluded four treaties in B.C. since 2006, with others under negotiation.

NDP critic Jean Crowder welcomed the ruling and said the governments at both levels have for too long taken the chance that aboriginal title would never be recognized in going ahead with development.

“Now, all levels of government will need to stop and consider whether or not they’ve met the duty to consult or justified an infringement. Governments will have to meet this obligation so development can continue, with First Nations determining how to use the land, not third-parties, to the benefit of many Canadians,” Crowder said in a statement.

Liberal Leader Justin Trudeau said in a post on Twitter, “We remain committed to partnering with aboriginal communities, based on inherent & treaty rights, to build a better future for all Canadians.”

B.C. Attorney General and Justice Minister Suzanne Anton​ said today’s decision “provides additional certainty around processes and tests that are applied to the relationship between the province and aboriginal peoples.”

What today’s ruling will mean for future pipelines is unclear, but one expert said it’s likely this decision will be used by First Nations fighting the Enbridge pipeline in court.

“The pipeline is going through many, many First Nations who have already declared that they do not want the Enbridge pipeline going through their territories, and this decision strengthens their rights to preserve their traditional territories,” said Antonia Mills, a First Nations studies professor at the University of Northern B.C.

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First Nations ‘ecstatic’ over historic Supreme Court ruling

Aboriginal people across Canada celebrate Tsilhqot’in First Nation’s win in Supreme Court ruling

By Connie Walker, CBC News – http://www.cbc.ca/news/aboriginal/first-nations-ecstatic-over-historic-s...

26 June 2014

It’s being hailed as a significant victory for First Nations, and aboriginal people across the country are celebrating today’s Supreme Court of Canada decision granting title to more than 1,700 square kilometres of land in B.C. to the Tsilhqot’in First Nation.

“This decision is such a huge, most important decision that I’ve been a part of.” said Tsilhqot’in First Nation Chief Roger William.

William and other B.C. leaders were together in a boardroom in Vancouver when they heard the news.

“I was completely surprised. I can tell you this whole room erupted in cheers and tears after this long hard struggle.” said Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs.

The unanimous ruling grants the Tsilhqot’in Nation title to a large area outside its reserve. It covers 1,700 square kilometres of land the group has traditionally used.

“This decision … will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country.” —Jody Wilson-Raybould, Assembly of First Nations regional chief

The Tsilhqot’n First Nation has been fighting the case for more than two decades.

As soon as the decision was announced, speculation began about how it would affect other First Nations across the country.

“This decision building on previous Supreme Court of Canada decisions will be a game-changer in terms of the landscape in British Columbia and throughout the rest of the country where there is un-extinguished aboriginal title.” said Assembly of First Nations (AFN) Regional Chief Jody Wilson-Raybould.

“Just because the Supreme Court of Canada has issued this claim doesn’t mean that the government is going to start giving all the land back to the aboriginal people.” said Métis lawyer Garth Walbridge.

“But it could have a serious economic impact. The size of the boulder that Enbridge is rolling up the hill to get their pipeline built just got much bigger today, because the First Nations in that part of the country now have much much bigger say in whether or not Enbridge can go ahead.”

Mi’kmaq lawyer Pam Palmater said this decision provides important clarification over what having aboriginal title means and how it will affect resource development projects.

“The aboriginal group in question has the exclusive authority to decide who uses that land and who benefits from that land and, as a result, provincial laws don’t apply.”

Chief Glenn Hudson of the Peguis First Nation said the Supreme Court ruling will have implications for First Nations in Manitoba.

“In Manitoba specifically, we’re talking about hydro developments — I know Bipole III, as far as the dams in the north, flooding that is occurring in our traditional lands,” he said.

“They need to come and sit with us to ensure that these negative impacts are addressed when it comes to our communities.”

In a statement, AFN acting spokesman Ghislain Picard said, “The court has clearly sent a message that the Crown must take aboriginal title seriously and reconcile with First Nations honourably. This decision will no doubt go down in history as one of the most important and far reaching ever rendered by the Supreme Court of Canada.”

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Canada’s Supreme Court grants aboriginal land claims

Cecilia Jamasmie – http://www.mining.com/canadas-supreme-court-grants-aboriginal-land-claim...

26 June 2014

In what is considered the most important aboriginal rights case in Canada’s history, the country’s Supreme Court ruled Thursday that the Tsilhqot’in First Nation has full rights over 1,750 square kilometres of land in south central British Columbia.

This is the first time the country’s high court acknowledges an aboriginal’s title to a specific tract of land — a landmark decision with major implications for controversial energy projects, such as Enbridge Northern Gateway pipeline.

Thursday’s 8-0 decision, which overturned an appeal court ruling, will essentially make it easier for First Nations to negotiate modern treaties or to fight for their land rights in court.

The decision, written by Chief Justice Beverley McLachlin, also makes clear that economic development on title land can continue – either with consent, or if there is no accord when the Crown has proven that the project has a “compelling and substantial” public interest.

Aboriginal leaders and politicians immediately described the decision as the mark of an epic shift in Canada-First Nations relations, and a signal the government is pushing local authorities to take treaty negotiations more seriously.

It is a “game changer”, said Jody Wilson-Raybould, regional B.C. chief of the Assembly of First Nations: “While many questions remain about how aboriginal title will be governed. The first decision on aboriginal title by Canadian court provides great hope that true recognition is possible.”

Justin Trudeau, leader of Canada’s Liberal Party, was one of the first politicians to welcome the verdict: “We welcome today’s ruling from the Supreme Court of Canada.”

He added his party remains “committed to partnering with Aboriginal communities, based on inherent and treaty rights, to build a better future for all Canadians.”

Aboriginal Affairs Minister Bernard Valcourt said in a statement Thursday that the government would review the “complex and significant issues” in the decision.

“Our government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians,” Valcourt said in the statement, adding that the government has concluded four treaties in B.C. since 2006, with others under negotiation.

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SCOC title claim decision could apply to large parts of Quebec, expert says

James O’Reilly, aboriginal-rights lawyer, says First Nations could claim land in most of northern Quebec

CBC News – http://www.cbc.ca/news/canada/montreal/scoc-title-claim-decision-could-a...

26 June 2014

A veteran aboriginal-rights lawyer says this morning’s Supreme Court of Canada decision could be applied to two-fifths of the Quebec’s territory.

“I think [this decision] has wide-sweeping consequences for virtually every set of negotiations with aboriginal nations in Quebec,” said lawyer James O’Reilly, who has argued for the rights of First Nations in Quebec for 50 years.

In a unanimous decision, Canada’s highest court ruled First Nations have a measure of control over their ancestral lands.

The Supreme Court of Canada agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles, considering:

O’Reilly said the decision lays out exclusive rights on land that First Nations have used, and still use for traditional purposes such as hunting and fishing.

He said that will likely rule out most developed parts of the province, but will still leave a lot:

“Fairly close to two-fifths of Quebec, actually, in my view. Certainly all of the Quebec North Shore, extending from the Saguenay River right up to the Labrador coast.”

O’Reilly said there are about nine groups in Quebec involved in land claim negotiations and this decision could encourage more bands to assert their rights.

Quebec’s minister of Aboriginal Affairs Geoff Kelley agreed that Thursday’s landmark decision from the Supreme Court will affect Quebec.

“It’s a judgment dealing with a case in B.C., but there will be consequences for Quebec so the government will have to look at it quite carefully,” Kelley said.

Ghislain Picard, the chief of the Quebec Assembly of First Nations, said the high court’s ruling will give bands more leverage during negotiations over the development of natural resources:

“To me, it presents yet a challenge, but what is more clear today is that the onus finally falls in the hands of government,” Picard said, adding that the federal and provincial governments will be forced to do more than politely consult First Nations.

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Tsilhqot’in Nation v. British Columbia 2014 SCC 44

Mandell Pinder LLP Case Summary

26 June 2014

In a watershed decision released today, the Supreme Court of Canada (“SCC”) allowed the Tsilhqot’in Nation’s appeal and, for the first time in Canadian history, granted a declaration of Aboriginal title. In doing so, the Court confirmed that the doctrine of terra nullius (that no one owned the land prior to Europeans asserting sovereignty) has never applied to Canada, affirmed the territorial nature of Aboriginal title, and rejected the legal test advanced by Canada and the provinces based on “small spots” or site-specific occupation. The SCC overturned the Court of Appeal’s prior ruling that proof of Aboriginal title requires intensive use of definite tracts of land and it also granted a declaration that British Columbia breached its duty to consult the Tsilhqot’in with regard to its forestry authorizations. This case significantly alters the legal landscape in Canada relating to land and resource entitlements and their governance.

The SCC definitively concluded that the trial judge was correct in finding that the Tsilhqot’in had established title to 1,750 square kilometres of land, located approximately 100 kilometres southwest of Williams Lake. The Court reaffirmed and clarified the test it had previously established in Delgamuukw for proof of Aboriginal title, underscoring that the three criteria of occupation: sufficiency, continuity (where present occupation is relied upon), and exclusivity were established by the evidence in this case.

Sufficient and Exclusive Occupation

The SCC reasoned that Aboriginal title was not limited to village sites but also extends to lands that are used for hunting, fishing, trapping, foraging and other cultural purposes or practices. Aboriginal title may also extend “beyond physically occupied sites, to surrounding lands over which a Nation has effective control.” The SCC endorsed further examples of Aboriginal occupation sufficient to ground title including “warning off trespassers,” “cutting trees,” “fishing in tracts of water” and “perambulation.”

Further, the SCC affirmed the importance not only of the common law perspective but also of the Aboriginal perspective on title including Aboriginal laws, practices, customs and traditions relating to indigenous land tenure and use. The principle of occupation, reasoned the SCC, “must also reflect the way of life of Aboriginal people, including those who were nomadic or semi-nomadic.”

The SCC reasoned that the criterion of exclusivity may be established by proof of keeping others out, requiring permission for access to the land, the existence of trespass laws, treaties made with other Aboriginal groups, or even a lack of challenges to occupancy showing the Nation’s intention and capacity to control its lands.

What Rights Does Aboriginal Title Confer?

The Court reasoned that Aboriginal title holders have the “right to the benefits associated with the land – to use it, enjoy it and profit from its economic development” such that “the Crown does not retain a beneficial interest in Aboriginal title land.” Expanding on its reasons in Delgamuukw, the SCC concluded Aboriginal title confers possession and ownership rights including:

the right to decide how the land will be used; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.

These are “not merely rights of first refusal.” Indeed, the Court recommended that “governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

The SCC also reasoned that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.” If consent is not provided, the “government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.”

Justification Analysis

The Court clarified the justification analysis it set out in Sparrow, Gladstone and Delgamuukw. The Court reasoned that the Crown’s burden of demonstrating a “compelling and substantial” legislative objective must be considered from the Aboriginal perspective as well as from the perspective of the broader public in a manner that furthers the goal of reconciliation between the Crown and Aboriginal peoples. Further, the Crown must also “go on to show that the proposed incursion on Aboriginal title is consistent with the Crown’s fiduciary duty towards Aboriginal people.” The SCC reasoned that the Crown’s fiduciary duty means that: (1) incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land; and (2) the fiduciary duty infuses an obligation of proportionality into the justification process that is inherent in the reconciliation process. Implicit in the Crown’s fiduciary duty is the requirement that the infringement be necessary to achieve the government’s goal that the benefits not be outweighed by the adverse effects on the Aboriginal interest, and that the government go no further than necessary to achieve its goal.

The SCC warned that if governments do not meet their obligations to justify infringements to Aboriginal title, and do not act consistent with their fiduciary duties, project approvals may be unraveled, and legislation may fall. The message is that governments that don’t justify their actions act at their peril. The Court offered the following 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 it unjustifiably infringes Aboriginal title.

Impacts of Provincial Legislation

In light of its declaration of Aboriginal title, and based on the Forest Act’s definition of “Crown timber” and “Crown lands” not including timber on Aboriginal title lands, the SCC found that the Forest Act did not apply to the Tsilhqot’in’s Aboriginal title lands. The SCC concluded that “the legislature intended the Forest Act to apply to land under claims for Aboriginal title up to the time title is confirmed by agreement or court order.” However, once Aboriginal title is proven, the beneficial interest in the land, including its resources, belongs to the Aboriginal title holder.

On the question of whether provinces can legislate in relation to Aboriginal title and rights, or whether this amounts to an interference with a core area of federal jurisdiction under s. 91(24), the SCC held that the doctrine of inter-jurisdictional immunity did not apply.

The SCC reasoned that the inter-jurisdictional issue in this case was not one of competing provincial and federal powers but, rather, of addressing the tension between the rights of Aboriginal title holders to use their lands as they choose, and the authority of the Province to regulate land use. The SCC concluded that the guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982 operates as a limit on both federal and provincial legislative powers; therefore, the proper way to curtail interferences with Aboriginal rights and to ensure respect from Crown governments, is to require that all infringements, both federal and provincial, are justified.

Moving Forward

This case provides First Nations with significantly improved opportunities to advance their Aboriginal title and rights in a manner that reflects their vision, values and perspectives. The SCC’s decision essentially requires that the Crown and industry meaningfully engage with Aboriginal title holders when proposing to make decisions or conduct business on their territories. This engagement can no longer be limited to “small spots” but must be achieved with a view to tangibly addressing the incidents of title affirmed by this case; namely, the right of enjoyment and occupancy of title land; the right to possess title land; the right to economic benefits of title land; and the right to pro-actively use and manage title land. In this light, as the Court emphasized at para. 97 of its decision, the Crown and industry would be well advised to “avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”

Pragmatically speaking, this case provides sound guidance for effective and balanced consultation and accommodation discussions regarding decisions taken on Indigenous lands. The principles and laws affirmed in this case, once honoured and implemented, ought to re-invigorate negotiations in relation to the outstanding land question in British Columbia.

Opportunities abound.

We acknowledge, with much gratitude and respect the vision, courage and leadership of the Tsilhqot’in people in advancing this case.