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Land Use Law: Discussion Regarding Recent Court Decisions on Aboriginal Title


Discussion of the SCC’s Recent Interpretation & Expansion of Aboriginal Title

Over the past few months, the Supreme Court of Canada issued landmark decisions impacting Aboriginal title.  These decisions impact the various constitutional obligations of both federal and provincial governments.  Each decision also discusses — to varying degrees — the ability of government entities to override Aboriginal title.

The basis for the Supreme Court’s recent expansion stems from British Columbia court rulings that severely limited the nature of “Aboriginal title.”  Ultimately, this severely limited interpretation of Aboriginal title sparked the SCC’s decree in  Tsilhqot’in Nation v British Columbia, 2014 SCC 44.  In Tsilhqot’in, the Court unanimously — for the first time — recognized Aboriginal title.  It is critical to understand the significance of the decision in Tsilhqot’in.

The first reason has already been provided:  this case constitutes the first time that the SCC formally recognized a constitutional grant of Aboriginal title.  Of course, this precedential decision will prove binding upon all other Canadian courts.  The greatest impact will occur in provinces lacking treaty understandings with aboriginal entities, or those who have not otherwise secured agreements that extinguish(ed) aboriginal title claims.

However, it is perhaps the second reason which will prove — at a minimum — the most all-encompassing.  The SCC established principles of procedural due process — these principles will almost certainly impact provincial and federal government action on unsettled or contested claims of Aboriginal rights.  This may prove especially potent over matters involving the development and transport of natural resources.

The SCC ruling in Tsilhqot’in tackled and resolved several issues affecting Aboriginal title:

(1)  The Court issued guidelines around pleadings in Aboriginal land claim cases;

(2)  The Court set out the legal standard for establishing Aboriginal title;

(3)  The Court outlined the contours of Aboriginal title rights; and

(4)  The Court elucidated on the applicability of provincial laws to the issue of Aboriginal title.

Generally, the SCC defined Aboriginal title, while also establishing the standard necessary for the Government to legitimize an infringement.  The Government has a procedural duty to consult and accommodate the affected Aboriginal group.  Further, the Government’s actions must be backed by a “compelling and substantial objective,” that also acknowledges the Government’s fiduciary obligation to the group.

The Government’s duty to consult requires a degree of consultation and accommodation across a spectrum.  The degree of governmental consultation and accommodation is proportionate to the strength of the claim and to the seriousness of the adverse impact on the claimed right.  The Court insinuated that a compelling and substantial objective could include, but is not limited to, general economic development of agriculture, forestry, mining, its necessary infrastructure, and the expansion of non-Aboriginal populations.  Notwithstanding, even if a “compelling and substantial public purpose” is established, the Government must show that the proposed abridgment on the Aboriginal right is consistent with the Crown’s fiduciary duty toward Aboriginal people.

Next, the SCC ruled that provincial laws of “general application” will apply to territory covered by Aboriginal title, subject to two (2) exceptions:

1.  The law must actually be of general application and written in such a way so as to cover territory covered by Aboriginal title. With regard to the facts in Tsilhqot’in, British Columbia’s Forest Act only contemplated Crown land; the Court ruled that such is not synonymous with land covered by Aboriginal title.

2.  The law not must not infringe upon Aboriginal rights, as safeguarded under Section 35 of the Constitution Act of 1982.

Subsequently, within just a few weeks following issuance of Tsilhqot’in, the SCC elaborated further on its Tsilhqot’in rationale, specifically with regard to the ability of provinces and private corporations to develop and harness natural resources.  Tsilhqot’in certainly provided context to regions and provinces lacking a specific treaty with a First Nations band.  However, it left unclear the nature of a relationship in regions covered by a specific treaty.

In Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, the Court addressed this issue.   In doing so, the SCC both upheld historic treaties signed between First Nations and the Crown, while also endorsing the role and responsibility of provincial governments dealing with natural resource developments on land covered by treaty.

So, what is the significance of the Grassy Narrows decision.  Well, let’s break it down:

(1)  It affirms, describes and confirms the treaty relationship between the Crown and First Nations people.  In other words, it affirms the historical, numbered treaties entered between the First Nations and the Crown, and dating back to the 19th and 20th centuries, with many surrendering land claims to the Crown.  It also affirms the critical importance of such treaties — both for the Crown’s duties to the First Nations, and the ability of the Crown to take and utilize the land.

(2)  It confirms the ability of provincial governments to take up and manage land to develop natural resource projects.

(3)  It discusses limitations upon provinces to ‘take’ land, subject to fiduciary obligations to the First Nations.

The significance of the Grassy Narrows decision?  Its recognition of the ability (or limitations on such ability) by Government to develop natural resources on land encompassed by treaty, and subject to fiduciary obligations.  The SCC clearly cited Sections 109, 92 and 92A of the Constitution Act of 1867 as providing provincial authority to take Crown land under treaty for provincially-regulated purposes, such as natural resources development.  However, such authority is not without limit.  Indeed, provinces are held to duties attendant on the Crown, which must be exercised in conformity with the honour of the Crown and subject to the fiduciary duty on the Crown in dealing with First Nations interests.

2 Comments on This Post
  1. Laura

    I’m curious if you have any thoughts as to why this happened, i.e. why in 2014 did the validity of these claims finally sink in and garner a unanimous decision? Do you think it is simply the course of the judicial process, refining and reinterpreting judgments of the past? Or would it be naive to believe that the Canadian government adopting “truth and reconciliation” gave greater context to the issue of Aboriginal title in the Supreme Court? I would personally like to believe that the ruling could indicate a change in thinking, as it is, after all, 2014.

  2. I would have to say that these issues came to a head because of the nature of the British Columbia appellate opinion. The appellate opinion was so restrictive of Aboriginal title, essentially, reducing it to almost a nullity, that the SCC likely felt compelled to intervene and finally articulate the contours of the principle. Does it restrict Government use of native land? Absolutely. Is it an over-expansive decision, negating the ability of either the federal or provincial governments to use Aboriginal land for public benefit? I do not believe so. Actually, considering the nature of the second opinion in Grassy Narrows, it would seem to indicate the path of lesser resistance for the future, namely negotiation with First Nations groups in order to achieve a treaty that would allow for accommodation and consultation. As you know, Laura, natural resource development continues to be a hot topic (pardon the pun from a climate change sense), one in which both the federal and provincial governments continue to press.


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