Canada Day in a different Canada

On June 26, 2014, the landscape of Canada changed.  While some of us have sung our national anthem “our home and natives’ land” for some time, the Supreme Court of Canada has confirmed in a profound way whose land we are on. The unanimous decision in the Tsilhqot’in First Nation case has not toppled existing law so much as it has clarified what has been clear to anyone who reads the Constitution and the growing pile of case law going back to the 1973 decision in Calder. That Supreme Court decision, though somewhat muddy, led to treaty negotiations with many First Nations, particularly in British Columbia.

By 1982, the newly repatriated Canadian Constitution spoke in clear terms of Aboriginal rights. Section 35 of the Constitution Act, 1982 “recognized and affirmed” existing Aboriginal rights. Still, that Constitutional language remained open to dispute, leading to a litany of strong and consistent cases, confirming Aboriginal rights and title.  Those of us who have studied Aboriginal law know the names like a catechism – Guerin (involving the Musqueam), Sparrow, Delgamuukw, Marshall, Haida Nation.  Each case built on earlier case law, consolidating a body of jurisprudence that brooked no denials of First Nations’ rights and title and of the governments’ (federal and provincial) obligations, as a fiduciary duty imposed by the Constitution on governments to ensure consultation with First Nations. The astonishing thing is how cavalier successive governments have been to the matter of Aboriginal rights and title.

Still, as clear as the course set by previous decisions had been, the Tsilhqot’in decision was stunning.  Where previous decisions had set out how a First Nation could establish a claim and title, the Tsilhqot’in decision tells us exactly what “title” means. I think by now the outlines of the Tsilhqot’in case have been well-reported.  In 1983, the British Columbia government granted a logging permit to Carrier Lumber Ltd. on the territory of the Xeni Gwet’in First Nation  — one of the six bands within the Tsilhqot’in Nation. The Xeni Gwetiin went to court and blockaded a bridge to block the logging.  The premier promised that there would be no further logging without their consent, ending the blockade.  Five years later, when negotiations were at a stand-still, the Xeni Gwet’in went back to court.  The wheels of justice grind slowly; that is the case which 25 years later has been resolved.

Let me set out some of the key points that distinguish this case from any worries about “All land, everywhere” or loss of non-aboriginal land title, or other potential misinterpretations of the case.

Firstly, the lower courts had already resolved that the Tsilhqot’in had proven the claim of continuous use and occupation of their territory. The SCC quoted the test from Delgamuukw:

In order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive.

The Supreme Court of BC and BC Court of Appeal agreed that the Tsilhqot’in had met these tests and had title.  But the Court of Appeal had overly narrowly defined title as specific and small areas, rather than the common sense understanding that semi-nomadic peoples occupy a territory, not a rock here and a tree there. The Supreme Court of Canada has clarified this to understand territory more broadly in granting of aboriginal title to more than 1,700 square kilometres of land.

Secondly, within that territory, ownership rights of conventional freehold to non-aboriginal owners is unchanged.  Provincial and federal laws still apply.  The difference is that any resource exploitation or other activity interfering with Aboriginal rights and title cannot take place without the agreement of the First Nation.

So how do the nature of Aboriginal land title and non-Aboriginal property rights relate?  The unanimous decision from Chief Justice McLaughlin states:

In  Delgamuukw …this Court confirmed the sui generis nature of the rights and obligations to which the Crown’s relationship with Aboriginal peoples gives rise, and stated that what makes Aboriginal title unique is that it arises from possession before the assertion of British sovereignty, as distinguished from other estates such as fee simple that arise afterward. The dual perspectives of the common law and of the Aboriginal group bear equal weight in evaluating a claim for Aboriginal title.

The decision goes on to describe the ways in which fee simple ownership differs from Aboriginal title.  For one thing, Aboriginal title is held in common.  It is a right that cannot be alienated except to the Crown and it must be maintained for future generations.  I think it is the intergenerational nature of the title that is more interesting and which has received the least media coverage.  The Chief Justice explains:

Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes — even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations to benefit from the land will be a matter to be determined when the issue arises.

Another area of potential confusion has been media coverage that governments can infringe on First Nations title without permission under certain circumstances.  But, just as in the case of expropriation of fee simple, governments must make a very strong case and intrude to the minimum amount possible — in the way of the kind of eminent domain to get a fire truck to put out a fire.  The Supreme Court ruled that Carrier’s interest in logging and the economic benefits argued by the BC government in this case fell well short. The government must establish “a compelling and substantial purpose and establish that they are consistent with the Crown’s fiduciary duty to the group.”   Enbridge need not apply.

We need to celebrate this decision, as the Tsilhqot’in leadership has asked of us, as the foundation of a new era of reconciliation and respectful relationship.