Aboriginal title and sustainable development: a case study.
| Author | Allen, Derek |
Introduction
The Tsilhqot'in Nation is a semi-nomadic community of some 3,000 people comprising six bands with a shared culture and history (Tsilhqot'in 2014, 259). Their name means "people of the blue water." At the time of the Supreme Court of Canada's judgment they were "one of hundreds of indigenous groups in British Columbia with unresolved land claims" (4). (2) In describing the judgment's "Historic Backdrop," the court wrote:
The issue of Tsilhqot'in title lay latent until 1983, when the Province granted Carrier Lumber Ltd. a forest license to cut trees in part of the territory at issue. The Xeni Gwet'in First Nations government (one of the six bands that make up the Tsilhqot'in Nation) objected and sought a declaration prohibiting commercial logging on the land.... Talks between the Ministry of Forests and the Xeni Gwet'in ensued, but reached an impasse over the Xeni Gwet'in claim to a right of first refusal to logging. In 1998, the original claim was amended to include a claim for Aboriginal title on behalf of all Tsilhqot'in people. (5) The title claim was opposed by the provincial and federal governments (6). In 2002, the issue went to trial in the British Columbia Supreme Court. The trial lasted for more than 300 days over a period of five years (7). The judge "found that the Tsilhqot'in people were in principle entitled to a declaration of Aboriginal title to a portion of the claim area as well as to a small area outside the claim area. However, for procedural reasons ... he refused to make a declaration of title" (7).
The case went to the British Columbia Court of Appeal, which held in 2012 that the title claim had not been established (8). The Tsilhqot'in then appealed to the Supreme Court of Canada, asking for "a declaration of Aboriginal title over the area designated by the trial judge" with the exception of lands that were privately owned or under water (9).
When I speak hereafter of "the Tsilhqot'in judgment," I will mean the Supreme Court of Canada's judgment.
The judgment explained that there were three requirements for Aboriginal title. The occupation of the claimed land must have been sufficient prior to the assertion of European sovereignty; it must have been continuous, in cases where present occupation was relied upon, and it must have been exclusive prior to European sovereignty (30, 50, 58). At the heart of the Supreme Court appeal was the issue of what counted as sufficiency of occupation (33). The trial judge had held that sufficient occupation was proved by "showing regular and exclusive use of sites or territory" (27). The Court of Appeal disagreed, and held that to prove sufficient occupation 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" (28). The Supreme Court sided with the trial judge on this issue (50). Further, it held that the Tsilhqot'in met all three requirements for title, and therefore granted them a declaration of title over the area at issue (51-66).
The Tsilhqot'in judgment makes frequent references to "the Crown." This is because Canada is a constitutional monarchy: the country's head of state is Queen Elizabeth II. For executive purposes, the Crown is the Queen-in-Council, meaning the executive branch of government.
Aboriginal title
The Tsilhqot'in judgment explains the nature of aboriginal title as understood in Canadian law. Four points are noteworthy for my purposes.
(i) Aboriginal title is in effect superimposed on an underlying title which the Crown acquired when European sovereignty was asserted (69). But the view that no one owned the land prior to the assertion of European sovereignty (the doctrine of terra nullius) never applied in Canada. On the contrary, the Royal Proclamation by King George III of England in 1763 affirmed that Aboriginal people who occupied and used the land before European settlement had pre-existing legal rights, (3) and this fact gave rise to a fiduciary duty on the part of the Crown (69)--a duty "owed by the Crown to Aboriginal people when dealing with Aboriginal lands" (71). For now, I will simply note that this duty is a feature of the Crown's underlying title to Aboriginal title land; I will say more about it later. There is a second feature: the Crown has "the right to encroach on Aboriginal title" if it can justify doing so under Canada's Constitution Act of 1982 (71). I elaborate below.
(ii) Notwithstanding the Crown's underlying title, Aboriginal title holders "have the right to the benefits associated with the land--to use it, enjoy it and profit from its economic development" (70).
Aboriginal title post-sovereignty reflects the fact of Aboriginal occupancy pre-sovereignty, with all the pre-sovereignty incidents of use and enjoyment that were part of the collective title enjoyed by the ancestors of the claimant group--most notably the right to control how the land is used. However, these uses are not confined to the uses and customs of pre-sovereignty times; like other landowners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice. (75) (iii) However, Aboriginal title "comes with an important restriction--it is collective title held not only for the present generation but for all succeeding generations" of the title holders (75). This means that the land cannot be developed by the title holders in a way that would "substantially deprive future generations" of its benefit (75).
(iv) Aboriginal title also imposes a restriction on the Crown: "[a]fter Aboriginal title to land has been established by court declaration or agreement, the Crown must seek the consent of the title-holding group to developments on the land" (90). If the title-holders do not consent, the Crown cannot proceed with the contemplated development unless it fulfills its "duty to consult and accommodate" (77).
The duty to consult is a procedural duty that arises from the honour of the Crown prior to confirmation of title.... The required level of consultation and accommodation is greatest where title has been established (78-79). There is a further requirement. If the title holders do not consent to the proposed development, the development cannot proceed unless the Crown "can justify the intrusion on title under ... the Constitution Act, 1982" (90). The relevant provision of this Act is section 35, to which I now turn.
Section 35
Section 35 of the 1982 Constitution Act recognizes and affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada" (Canada 1982). In Tsilhqot'in the court said that "it took some time for the meaning of this section to be fully fleshed out" (11). The fleshing out occurred in a series of Supreme Court judgments beginning in 1984.
In a general summary of its Tsilhquot'in judgment, the court wrote:
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 [not consented to by the titleholders] 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 (p. 261). These requirements jointly constitute what I will call the s. 35 justification test. I will consider them in turn.
A compelling and substantial objective
The Tsilhqot'in court, in agreement with the British Columbia Court of Appeal, asserted 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" (81).
[T]he process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d'etre of the principle of justification.. 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. (82) The court asked: "What interests are potentially capable of justifying an incursion on Aboriginal title?" (83). In response, the court quoted remarks by then Chief Justice Lamer in Delgamuukw: (4)
In the wake of Gladstone, (5) the range of legislative objectives that can justify the infringement of [Ajboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by [Ajboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that "distinctive [A]boriginal societies exist within, and are 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 these 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 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. (83; Gladstone, para. 165. Emphasis added, and emphasis in original...
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