Case Comment on Tsilhqot’in Nation v. British Columbia, 2014 SCC 44
Canadians awoke this morning to the post-denial period of Indigenous rights. Like any new day, promise and hope abounds. What tomorrow will bring is up to all Canadians, Indigenous and non-Indigenous alike. But first, it is time to take stock.
The dots-on-a-map theory of Aboriginal title is dead.
The Supreme Court confirmed that Aboriginal title can include territorial claims and that the occupation requirement for proof is not limited to intensive, regular use of small geographical sites (e.g. fishing spots and buffalo jumps). Rather, regular use of large swaths of land for traditional practices and activities (e.g. hunting, trapping and fishing) when coupled with exclusivity may be sufficient to ground a claim for Aboriginal title.
The implications are profound. Government’s myopic focus on dots-on-a-map is now indefensible. Indigenous people are now able to seek recognition of their territorial claims to Aboriginal title. For those, like the Tsilhqot’in, who are ultimately successful, the change will be dramatic. Subject to justifiable infringements, they will enjoy the right to exclusively use and occupy their Aboriginal title lands, to benefit from their lands and to decide on how their lands will be managed. In other words, they will, in large part, enjoy the rights and privileges of their ancestors. Over a century of denial will be put to rest.
The Duty to Consult
The duty to consult has new life.
Tsilhqot’in is about more than how to prove Aboriginal title and what happens if you succeed. For Indigenous people across Canada it is also about the here and now.
The possibility of territorial claims for Aboriginal title based on traditional activities will shift the duty to consult equation in favour of Indigenous people. Government and industry will have to step up and acknowledge the new reality—ostriches will be playing a high-risk game. The Court in Tsilhqot’in confirmed that a failure to meaningfully consult and accommodate Indigenous people prior to a successful claim for Aboriginal title will leave government and industry exposed to cancelled authorizations and claims for damages.
As the Court specifically stated, there is a simple and effective way for government and industry to avoid the uncertainty and risk they now clearly face—obtain the consent of Indigenous people before you mess with their lands and resources.
The Provinces have assumed a heavy burden.
In permitting provincial laws to apply to Aboriginal title lands the Court made new law and saddled the provinces with hefty legal obligations. The Court clarified that when Indigenous people succeed in confirming their Aboriginal title a province will not simply be able to apply their laws through box-ticking consultation. They will be subject to the much more onerous burden of obtaining consent or justifying infringements.
The Court’s justification test has largely fallen by the wayside since its 2005 decision in Mikisew in favour of less onerous—and often unsatisfactory—consultation obligations. When the provinces awaken to the reality of what it takes to justify an infringement, they may well regret their ‘success’ on this issue.
The implications extend beyond Aboriginal title. Last month the Supreme Court heard arguments on a similar issue in relation to Treaty rights as part of the Keewatin appeal. Based on Tsilhqot’in, the Court may be prepared to open the door to provinces regulating treaty rights. If it does, the same onerous obligations to obtain consent or meet the high standards of justifying an infringement would presumably apply. If so, the days of shuttling Treaty rights to the side through pro forma duty to consult processes may be at an end. Similar standards should also apply to uncontested Aboriginal rights.
The jig is up.
New government mandates for the British Columbia treaty process are necessary. It is hard to imagine why Indigenous people would join or continue to participate in the current process with its pre-determined, non-negotiable government limitations when the reality and promise of Aboriginal title has been confirmed.
Those who assume that Tsilhqot’in will not affect Treaty people are mistaken. For Indigenous people with pre-Confederation treaties (e.g. the Douglas treaties on Vancouver Island and the peace-and-friendship treaties in the Maritimes) the implications are obvious. Their claims to Aboriginal title can now be pursued with renewed confidence. Their demands that government obtain their consent before exploiting their lands have new credibility.
Tsilhqot’in is also vitally important for Indigenous people with one of the numbered treaties negotiated in Ontario, the prairies, British Columbia and the north since Confederation.
For generations successive provincial and federal governments have proceeded on the assumption that through these treaties Indigenous people ceded, released and surrendered their Aboriginal title to so-called Crown lands. In contrast, Treaty people have widely maintained that their ancestors did nothing of the kind. The numbered treaties for them are about establishing respectful, mutually beneficial relationships. The Supreme Court’s endorsement of a liberal test for Aboriginal title encompassing territorial claims based on traditional Indigenous practices will embolden Treaty people to repudiate the language of ‘cede, release and surrender’ while they assert Aboriginal title over their ancestral lands.
Where to from here?
Now is the time to honour, thank and recommit.
We honour those, both Indigenous and non-Indigenous, who did so much in the long struggle to have Aboriginal title recognized and confirmed but did not live to see their dream realized.
Thanks are owed to the current generation who inherited the weight of their ancestors’ efforts and did not shrink from the responsibility.
And a recommitment is owed to future generations to ensure that this remarkable success is not undermined by complacency.
The Supreme Court has handed all Indigenous people a mighty victory—now is the time to see that the promise is realized.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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