"...provincial governments will have to do more than fulfil the duty to consult."
"...Tsilhqot’in and Grassy Narrows call into question governments’ assumption that the historical treaties were cede, release and surrender treaties..."
What Tsilhqot’in and Grassy Narrows Mean for Treaty First Nations
By Bruce McIvor
Commentators and governments continue to downplay the significance of the Supreme Court of Canada’s Tsilhqot’in decision for Treaty First Nations. Below I summarize both Tsilhqot'in and the Supreme Court’s Grassy Narrows decision from the perspective of treaty rights. I then explain how together the two decisions lay the foundation for a new age of respect and recognition for Treaty First Nations.
In Tsilhqot’in the Court addressed two main issues. First, can Indigenous peoples advance Aboriginal title claims on a territorial basis or is Aboriginal title confined to dots on a map? Second, if Aboriginal title exists, can provincial legislation apply to Aboriginal title lands?
On the first issue the Court put to rest the dots-on-a-map theory of Aboriginal title. Regular use of definite tracts of land on a territorial basis for hunting, fishing and otherwise exploiting resources is sufficient to establish Aboriginal title.
On the second issue, the Court held that as a general rule, provincial laws of general application apply to Aboriginal title lands subject to the Crown’s obligation to justify an infringement of Aboriginal title, its fiduciary obligations and s. 91(24) of the Constitution Act, 1867.
When Aboriginal title is established, the Crown must do more than fulfil its duty to consult. The Crown must either obtain the consent of Indigenous peoples to use Aboriginal title lands or meet the legal requirements for justifying an infringement.
Finally, the need to preserve Aboriginal title lands for the use and benefit of future generations is an inherent limit on Indigenous peoples’ use of Aboriginal title lands as well as any attempt by the Crown to justify an infringement of Aboriginal title.
In Grassy Narrows the Supreme Court also answered two questions. First, when lands are ‘taken up’ under Treaty 3, did the Treaty Commissioners intend there to be a two-step authorization process involving the federal government? Second, can provincial legislation apply so as to infringe the exercise of the treaty rights?
The Court concluded that the trial judge’s overriding error in Grassy Narrows was her finding that the ‘taking up’ of lands under Treaty 3 requires a two-step authorization process involving Canada. The Court concluded that the right to take up lands attaches to the level of government with the beneficial interest in the land and the necessary constitutional legislative and administrative powers.
The Court also held that both the federal government and provinces are responsible for fulfilling treaty promises. Consequently, Ontario is bound by the Crown’s treaty obligations, the honour of the Crown and the Crown’s fiduciary obligations to Indigenous peoples.
Finally, based on Tsilhqot’in, the Court held that the division of powers doctrine of interjurisdictional immunity does not apply to limit a province’s legislative authority to interfere with the exercise of treaty rights. Ontario has the power to take up lands without the federal government’s supervision but must fulfil the duty to consult. If it takes up so much land that there is no meaningful ability left to exercise treaty rights, it may be liable for infringement of the treaty.
What now for Treaty First Nations?
Together, Tsilhqot’in and Grassy Narrows will have far-reaching effects for Treaty First Nations. Here I highlight two of the most important effects.
First, in many situations provincial governments will have to do more than fulfil the duty to consult. This is because not all government action that affects treaty rights constitutes a ‘take up’ under treaty. Taking up land is generally considered to be putting the land to a use visibly incompatible with the exercise of a treaty right, e.g. a farm yard, a mine site, etc.
Many provincial decisions that affect treaty rights are not a take up of land under treaty. For example, the enforcement of wildlife and fishery laws or the development of forest management plans. In those instances, provincial governments would need to meet the requirements for justifying the infringement of the treaty right.
The basic requirements for justifying the infringement of Aboriginal title and for justifying the infringement of a treaty right are the same. First, the Crown must establish a compelling and substantial objective consistent with the Crown’s fiduciary obligations to Indigenous peoples. For a government objective to be compelling and substantial, it must be considered from both the public and the Aboriginal perspective. It must also further the goal of reconciliation of Indigenous peoples’ rights and interests with the Crown’s assertion of sovereignty over Indigenous lands.
In addition, the Crown must establish that the infringement of the treaty right is necessary to achieve the compelling and substantial objective. It must demonstrate that the infringement minimally impairs the treaty right and that the benefits to the general public are not outweighed by the negative impacts on the First Nation.
As with Aboriginal title, the provinces should be expected to seek First Nations’ consent for infringement of treaty rights. Without consent, authorizations may be quashed and damages awarded.
The second major issue that should be emphasized is that Tsilhqot’in and Grassy Narrows call into question governments’ assumption that the historical treaties were cede, release and surrender treaties under which First Nations agreed to give up their Aboriginal title. Given that both Indigenous peoples and the Crown are constrained by the necessity of preserving Aboriginal title lands for the use and benefit of future generations, can the common intention of the treaties have been to extinguish Aboriginal title? Also, interpreting the treaties as extinguishment documents would be inconsistent with the Supreme Court’s discussion in Tsilhqot'in and Grassy Narrows of the Crown’s fiduciary obligations and the honour of the Crown.
As with most Supreme Court Aboriginal law decisions, it remains to be seen how lower courts will interpret and apply Tsilhqot'in and Grassy Narrows, especially in relation to treaty rights. While together the decisions provide the basis for renewed respect for the spirit and intent of historical treaties, the Supreme Court may eventually be called on to clarify the extent of the provinces’ obligations and the limits on their authority.
Bruce McIvor is principal of First Peoples Law Corporation.
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