August 2014 Māori Law Review
Professor John Borrows, consultant editor to the Māori Law Review, notes the recent Aboriginal title decision of the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia  SCC 44.
Download Tsilhqot’in Nation v. British Columbia  SCC 44 here.
Overview and result
On June 26, 2014 the Supreme Court of Canada released its decision in Tsilhqot’in Nation v. British Columbia  SCC 44. The Court ruled that the Tsilhqot’in have Aboriginal title to lands they claimed they owned and possessed from time immemorial. The Court construed Aboriginal title as a broad right to use and own land for a wide variety of purposes. It also ruled that Aboriginal title could be infringed by the Crown if it demonstrated a compelling and substantial objective and acted consistent with its fiduciary duty and upheld its honour. The Supreme Court said that the Crown had this authority because it held underlying title to the Tsilhqot’in lands and possessed jurisdictional authority over the lands pursuant to section 92 of the Canada Constitution Act, 1867 (which vests authority over property and rights in the provinces).
The decision is an important victory and a substantial loss for First Nations in Canada. The Tsilhqot’in people are now the recognized owners of the claimed territory and can use their land as they choose. At the same time the Court solidified the provincial Crown’s claim to modify or diminish these interests when it acts in a constitutionally prescribed manner. The case both diminishes and reinforces colonialism in Canada. Its laudatory and deeply problematic nature will be briefly explored in this note.
The Tsilhqot’in people are an Athapaskan speaking group who live in the central region of British Columbia. Their approximately 3000 citizens are organised in 6 bands. For the purposes of this case they claimed approximately 438,000 ha (4,380 km2) of land which was recognised and affirmed as Aboriginal title under section 35(1) of Canada’s Constitution.
The roots of the Tsilhqot’in case were planted when “[o]n June 4, 1792 Captain George Vancouver stepped ashore and claimed all of the land of what was later to become British Columbia on behalf of the British Crown” (Tsilhqot'in Nation v. British Columbia  BCSC 1700). European traders and explorers had very little contact with the Tsilhqot’in over the next fifty years. Eventually a party of British settlers attempted to unilaterally survey and settle a portion of their territory. The Tsilhqot’in blocked the construction of this road. In the process, in 1864, they killed nineteen settlers and expelled every so-called White person from their territory. While the Tsilhqot’in paid for these acts through the hanging of four of their chiefs under questionable legal proceedings, for the next one hundred years they continued to live on their territory with minimal external demands on their lands. This was the case until 1983 when the Province of British Columbia granted Carrier Lumber Ltd. a forest licence to cut trees in part of their territory.
The lower courts
Over the next 15 years the Tsilhqot’in objected to the province’s action through blockades, negotiations and legal action. In 1998 they eventually filed an Aboriginal title claim in the courts. The case began in 2002 and resulted in a 339 day trial which led to a judgment in their favour in 2007 (Tsilhqot'in Nation v. British Columbia  BCSC 1700). Justice Vickers of the British Columbia Supreme Court, who presided over the case, held that the Tsilhqot’in people were entitled to a declaration of Aboriginal title though he refused to make the declaration for procedural reasons. Nevertheless, the 1,382 paragraph decision was favourable to the Tsilhqot’in people. It contained detailed findings concerning use, occupation and ownership of land in accordance with Tsilhqot’in legal traditions.
The trial decision was appealed to the British Columbia Court of Appeal where the Tsilhqo’tin lost. In 2012 the Court of Appeal overturned the trial judge’s decision (William v. British Columbia  BCCA 285). The Court of Appeal applied a narrower test for Aboriginal title - site-specific occupation as opposed to regular and exclusive use of wider territorial lands. It held “that the Tsilhqot’in claim to title had not been established, but left open the possibility that in the future, the Tsilhqot’in might be able to prove title to specific sites within the area claimed” (Tsilhqot’in Nation v. British Columbia  SCC 44 at ).
Discussion - the Supreme Court of Canada
As noted, on June 26, 2014 the Supreme Court of Canada overturned the British Columbia Court of Appeal and granted a declaration of Aboriginal title over Tsilhqot’in land.
Sufficiency of occupation
The Supreme Court disagreed with the legal theory underlying the Court of Appeal decision.
The Court of Appeal had ruled that the ‘nomadic’ Tsilhqot’in did not regularly and sufficiently occupy the land when the British asserted sovereignty over their lands. The Court of Appeal purported to apply the approach of an earlier Aboriginal title case which originated in Nova Scotia. In that case, called R. v. Marshall; R v. Bernard, a majority of the Supreme Court held that “[n]ot every nomadic passage or use will ground title to land. … In each case, the question is whether a degree of physical occupation or use equivalent to common law title has been made out” (R. v. Marshall; R. v. Bernard  2 S.C.R. 220,  SCC 43, at ).
In rejecting the Court of Appeal’s application of this test, the Supreme Court found the Tsilhqot’in established a sufficiency of occupation necessary to prove Aboriginal title. The Court held the Tsilhqot’in also demonstrated a continuity and exclusivity of occupation to establish their case (at -).
In coming to this conclusion the Supreme Court of Canada judged Tsilhqo’tin title by both the Aboriginal and common law perspectives (at -). Aboriginal title was thus established on a territorial basis, rather than a narrower site-by-site approach advanced by the Court of Appeal. In adopting this view the Supreme Court of Canada deferred to the trial judge’s finding of facts (at ) and wrote that there is “no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held” (at ).
Evidence and Indigenous legal traditions
It is worthwhile noting (though the Supreme Court never acknowledged this fact) that large portions of the Tsilhqot’in case depended upon the testimony of elders, who gave evidence on their territory, and spoke volumes about Tsilhqot’in law in their own language and in accordance with their own legal traditions. Elders’ testimony demonstrated a wide-ranging relationship with all parts of the territory which “evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.” (at ). The significance of the case’s evidentiary foundation certainly lends credence to the ongoing importance of Indigenous peoples’ own legal processes and substantive views as one of the pillars of Canadian law.
Rights conferred by Aboriginal title
Having recognised that the Tsilhqot’in people possess Aboriginal title, the Supreme Court explained which rights were conferred through a broader recognition of Aboriginal title. The Court wrote that the rights which flow from Aboriginal title are very broad. Since Tsilhqot’in title arose prior to European sovereignty the Court called it an independent legal interest (meaning it was not created by the Crown or Courts). They also noted that Aboriginal title is also a:
right to exclusive use and occupation of the land . . . for a variety of purposes, not confined to traditional or “distinctive” uses... In other words, Aboriginal title is a beneficial interest in the land... In simple terms, the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. (at ).
Furthermore, the Supreme Court of Canada held that the Crown does not retain any beneficial interest on Aboriginal title lands (at ). First Nations who have title can use their lands as they choose, subject to two limits: 1) Aboriginal title cannot be alienated except to the Crown; 2) nor can it be encumbered, developed or misused in ways that would prevent future generations of the group from using and enjoying it (at ). Despite these limits the Court recognized that Tsilhqot’in land use is not “confined to the uses and customs of pre-sovereignty times; like other land-owners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice (at ). As a result the Tsilhqot’in now have a measure of control over their land which is largely akin to (though not exactly like) fee simple ownership. As the Court wrote:
Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land. (at ).
Furthermore, Tsilhqot’in title also imposes significant limits on the Crown’s underlying title. The Court wrote that “Crown title…is burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival” (at ). Additionally, the “content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it” (at ). These are substantial subtractions from the Crown’s estate. These limits substantially reduce the ability of the Crown to control, use or benefit from land subject to Aboriginal title. However, the Crown still has a paramount legal interest in Aboriginal title lands. This is where the judgment becomes more problematic when considering whether the court has rejected the doctrine of discovery.
Terra Nullius reproduced
In writing its opinion the Supreme Court of Canada purported to refute the application of the doctrine of terra nullius in Canada. It wrote: ““[t]he doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada” (at ). Unfortunately the Court reproduced and reaffirmed one of the most troubling aspects of terra nullius in the very same paragraph. The Court wrote: “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province.” This formulation is a restatement of the doctrine of terra nullius despite protestations to the contrary in the decision. The Court presupposes that Aboriginal land is legally vacant for the purposes of underlying title and overarching governance. Despite the Court’s attempt to reject terra nullius the Court gives the Crown governance and use rights over Aboriginal lands by virtue of their assertions of sovereignty.
There is no explicit justification in the decision for why the Crown and not the Tsilhqot’in have underlying title to the land. The Tsilhqot’in people are its rightful, prior and present owners, as the Supreme Court now acknowledges. Furthermore, they have owned this land from time immemorial. It ‘does not make sense’ to vest rights possessed by Indigenous peoples in other peoples through the mere act of assertion (see John Borrows, "Sovereignty's Alchemy: An Analysis of Delgamuukw v. the Queen" (1999) 37 Osgoode Hall Law Journal 537). It requires a discriminatory denigration of Indigenous peoples’ laws and life-ways to hold that Indigenous title and governance is subject to non-Indigenous paramount interests as a by-product of European sovereign assertions. This is what the Supreme Court of Canada has done in the Tsilhqot’in decision. Despite the many positive aspects of the case in the Tsilhqot’in decision, Aboriginal title is still a “burden on the underlying title asserted by the Crown at sovereignty” (at ). Terra nullius, though modified by this case, is very much alive and well in Canada.
The implications of the Supreme Court’s application of terra nullius assumptions are at least three-fold.
First, the Court is quite clear that Aboriginal title can be infringed or diminished as a result of the Crown’s superior position. As noted the Crown’s paramount status gives the government a right to encroach on Aboriginal title, and not the other way around: Aboriginal peoples have no right to unilaterally diminish constitutionally vested title or impede Crown interests.
Second, the subordinate nature of Aboriginal title and the continued application of the doctrine of discovery is evident in the fact that Tsilhqot’in title is not assumed to exist in the same way that Crown sovereignty and its underlying title are assumed to exist. Unlike Crown title, Aboriginal title must be established by the Court or through agreement with the Crown. 1 This is often a difficult process. There are not many avenues to achieving recognition that are costless for First Nations. Throughout the opinion the Court makes the distinction between established or confirmed title on the one hand, and unproven title on the other. (see , , , , , , , , , , -, -, - for references to established/confirmed and ,  for references to unproven title). The fact that Aboriginal title will require some official recognition process signals one of the greatest challenges for Indigenous groups flowing from the Tsilhqot’in decision. The Crown and Courts have the upper hand in the recognition process. Court cases cost millions of dollars each, and First Nations do not have this kind of money available to them. For example, the Tsilhqot’In case was a publically funded test case which allegedly cost over $40,000,000 to bring to a successful conclusion. The next case will not fall into such a category and thus public funding would not be available to bankroll it. The cost of litigation will place a court-ordered declaration of Aboriginal title beyond the reach of most groups. Furthermore, the 20 year old treaty process in British Columbia has been a dismal failure for First Nations, making it unlikely they would secure recognition of title under this process, at least as currently constituted.
Third, the Supreme Court demonstrated a terra nullius approach to Aboriginal rights in the Tsilhqo’tin case when it failed to give attention to Tsilhqot’in jurisdiction over the land flowing from their ancient occupation. Instead the Supreme Court allowed provincial laws of general application to govern Tsilhqot’in lands (at ). It said a legal vacuum would exist in Canadian law if provincial law did not apply to Aboriginal lands (at ). The Court’s conclusion cuts against a two hundred and fifty year-old constitutional principle first outlined in the Royal Proclamation of 1763, and accepted by many First Nations in central Canada in the 1764 Treaty of Niagara. The Royal Proclamation and 250 years of Canadian law, as affirmed in section 91(24) of the Constitution Act, 1867, interposed a more distant imperial or federal power between First Nations and colonial/state/local/provincial governments. The exclusion of the provinces for dealing with First Nations was one of the few checks and balances Indigenous peoples enjoyed under Canadian law throughout history. While the 13 former American Colonies rebelled against this principle in the American War of Independence, governments north of the border have largely upheld the Proclamation and Treaty of Niagara’s principles – that is until June 26, 2014 when the Tsilhqot’in decision was released. With the Tislhqot’in decision the Supreme Court of Canada has overturned First Nations’ Magna Carta (Calder. V. A.G.B.C (1973), 34 D.L.R. (3d) 145,  S.C.R. 313.). The Court has now substituted a justificatory process which provinces (and the federal government) must follow in infringing Aboriginal title; the provinces with all their incentives to derive benefit from Indigenous lands are now fully vested with such authority.
While Indigenous peoples now have the possibility of owning and using lands in British Columbia for a wide variety of purposes, the Crown still retains underlying title and paramount sovereign authority over these lands by virtue of the Tsilhqot’in decision. These propositions are the echo and remnants of terra nullius. Crown power can be directly traced to discriminatory assumptions rooted in European sovereign assertions when the Crown ‘discovered’ Canada.
At the same time the decision has very positive implications for Indigenous peoples in the broader context of the dispossession they have encountered. Tsilhqo’tin people now own and control their land in the claim area and can use it for a wide variety of purposes. A broad array of remedies exists to enforce that interest, including: injunctions, damages, and orders for the Crown to engage in proper consultation and accommodation of Aboriginal title. They can also bring legal suits to secure all the usual remedies for a breach of land rights, as long as they are adapted to the special nature of Aboriginal peoples’ relationship to land. The Court even suggested it might even cancel provincial projects if governments did not properly discharge their duties to First Nations at earlier points in their dealings (at ). These are significant remedies which exist much more clearly as a result of the Tsilhqot’in case.
At the same time the Supreme Court of Canada assumed away Indigenous peoples’ underlying title and overarching governance powers in the Tsilhqot’in decision. While a future decision might recognise Indigenous governance power there is now a new obstacle for future actions to address: the presumptive application of provincial laws of general application to Indigenous lands. This obstacle is present courtesy of the application of a troublingly modified terra nullius assumption. While Canadian governmental privileges are gained through an inequitable fiction, provincial and federal power will nevertheless continue to frame and constrain Indigenous land use and governance throughout the land. The case demonstrates how Canada remains a deeply colonial state built on the vilest of discriminatory tenets. Despite the real and substantial cause for cheering which accompanies the Tsilhqot’in decision, much work remains to be done.
- One might also conceive of the possibility that Aboriginal title could also be established by legislative means, as Canada argued occurs in Australia under the Native Title Act. ↩