Friday, June 27, 2014

Supreme Court of Canada Tsilhqot'in decision

The areas in dark green the cross hatched areas are now recognized Tsilhqot'in
Aboriginal Title, an area of about 175,000 hectares
Yesterday the long awaited decision on the Tsilhqot'in Xeni Gwichin Aboriginal title case was handed down.   For the first time in Canadian history the courts have recognized the existence of Aboriginal Titleo on the ground.   The Supreme Court of Canada declared that about 175,000 hectares of land still belong to the Tsilhqot'in.  This is an important milestone in aboriginal law.

The decision is the latest in a long series of aboriginal law cases in Canada stretching back more than 40 years.   Most of these cases have been related in one way or another to the existence of aboriginal title and rights.   What changed yesterday is that finally a court decision has recognized aboriginal title on the ground.   With the release of the judgement yesterday the Tsilhqot'in  had their ownership of  the land confirmed by the Supreme Court of Canada.

The decision is not a radical one because past case history pointed to this being the eventual likely result.   Even thought it is an expected result and not a dramatic departure from previous decisions there are several aspects that make this judgement different than others:

  • This is the first recognition of actual Aboriginal Title by the courts in Canada
  • The decision uses the word consent for the first time
  • The decision makes it clear that Crown Land can exist when there is Aboriginal Title
  • There is now a lot of work that needs to be done to understand how Aboriginal Title land will work on a day to day basis

First Recognition of Aboriginal Title by a Court
Since Calder in 1973 First Nations in BC have been trying to get the courts to declare that Aboriginal Title exists and recognize where it exists.   Again and again for over 40 years the courts have managed to avoid declaring one square meter of land in BC to be Aboriginal Title.   In this decision the courts have finally agreed that in a part of BC there is Aboriginal Title in existence.

from the decision:
[153] I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in.  I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations.

This declaration recognizes this land as not only being owned by the Tsilhqot'in now, but that it never stopped being Tsilhqot'in.   The Supreme Court of Canada has created nothing but only recognized what has always been there.

As of yesterday the concept of Aboriginal Title is no longer a potential but a reality on the ground.  About 210,000 hectares of land are now recognized as Tsilhqot'in land.   The Province of BC has about 1750 square kilometers less Crown Land that it managed on Wednesday.

The recognition of Tsilhqot'in Aboriginal Title implies the recognition of some form of self governance and this implies that the sovereignty of the Tsilhqot'in has not been entirely erased by the Crown.  What existed before the assertion of Crown title continues and retains some degree of sovereign power.

It is important to understand that Aboriginal Title can not be created  the Crown.  The Crown also does not have the power to extinguish Aboriginal Title.  The recognition of Aboriginal Title is a recognition that at least some of the legal sovereign rights of the First Nation still exist.

Consent is now required
Over the last generation the degree to which governments have to talk with First Nations has constantly evolved.  Initially it was that First Nations had to have plans and developments referred to them, then it was they had to be consulted with, after this it was consultation with accommodation for any aboriginal rights that might be infringed, now the Supreme Court has used the term consent.

from the decision
[76]  The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.  If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35  of the Constitution Act, 1982 .

The current legal precedence with regard to consultation comes from the Haida case.  Haida speaks to a continuum based on the strength of the claim and the degree of potential infringement of the aboriginal rights.   A declaration of Aboriginal Title will mean a few changes to this.

  • First, the land in question is no longer Crown Land and therefore the Crown no longer decides what can and can not happen on the land.  The First Nation is now the lead.
  • Second, the declaration of Aboriginal Title means the strongest possible aboriginal right exists - it is no longer a claim. 
  • Third, the use of the word consent suggests a much deeper and more rigorous application of the duty to consult, realistically the most deep and all encompassing possible.  Aboriginal Title is the strongest constitutionally protected right aboriginal people have in Canada

The Crown retains a right to infringe the Aboriginal Title but this should be seen at best as a weak form of expropriation.  I think it would be foolhardy for the Crown to consider going down this path because of the very concrete form of the Aboriginal Title right.   I can only see any attempt at infringement Aboriginal Title ending up in the courts.

Crown Land can not exist where there is Aboriginal Title
A lot has been discussed about the relative power and rights of Aboriginal Title.  Various court decisions over the last 15 years have touched on aspects of this but none of really answered an important aspect  - what sort of title the Crown would have over Aboriginal Title land?  This decision made it clear that where there is Aboriginal Title the Crown no longer has Crown Lands.   All that remains is a limited form of Crown Allodial title to Aboriginal Title land.

The remaining Crown title to the land is among the thinnest of Crown rights in Canada.   All that is left for the Crown title is the fiduciary duty to the First Nations and the right to encroach subject to justification as restricted by the constitutional protection of Aboriginal Title land.

An immediate problem that arises from this is that all the tenures created on Crown Lands in the area are no longer valid.   The Aboriginal Title predates the creation of any Crown Land tenures and since the court has found Aboriginal Title still exists today it takes precedence over all other rights the Crown has granted on these lands.

With the land no longer being considered Crown Land, the very relationship between the First Nation and Crown changes.   Aboriginal rights were considered an encumbrance on Crown Lands but once the land is declared Aboriginal Title there is no longer any Crown Land for aboriginal rights to encumber.   This change in the land status changes the very way BC and the Tsilhqot'in will interact with respect to the land.

The laws in BC that deal with Crown Lands no longer apply to the Tsilhqot'in lands.   The province can no longer issue tenures for anything on that land but on the other hand the Tsilhqot'in can if they create the governance structure to do so.   The province is no longer the lead on deciding any sort of land use on Tsilhqot'in land.

How will Aboriginal Title land work?
Aboriginal Title land is not within the framework of how land interests are legally created or registered in Canada.  It is a form of land holding that is outside of all other examples and no one has written the playbook.

An important aspect of the unique nature of Aboriginal Title land is that is a communal right to the land.   This is nothing new with respect to Aboriginal Title but it is an important to consideration when considering how the land will be managed on a day to day basis.    The communal nature of the right to the land speaks to the Tsilhqot'in having the right to the land more in the form of a government and not as a group of individuals.   This says to me that the recognition of the continued existence of the Aboriginal Title land means that there has to be a legal self government to look after the land.  I have no idea what form this self government will be.

The Tsilhqot'in government may not give up any Aboriginal Title land except to the Crown.   This also speaks to the right of self governance because the transfer of Aboriginal Title land to the Crown is more about a change in the sovereign right to the land than a real estate transaction.    On the other hand, there is nothing restricting the Tsilhqot'in from creating interests in their lands.  I do not know how they would create these interests and what legal mechanism would be used to enforce them.

The Tsilhqot'in can either create their own system of land governance or they can develop some form of partnership with the province to manage the land.   In either case it is the Tsilhqot'in government is driving things.

The province still retains some right to create laws in relation to lands in BC but how, or which, laws would effect Aboriginal Title land is not clear at all.

What Now?
Unless the Province becomes very proactive very quickly things could become messy in BC and not benefit anyone.

Right now there is only one area in BC where Aboriginal Title has been recognized but it will not remain at that.   Many First Nations will start Aboriginal Title court cases in the near future.  Ultimately I expect almost all of the Crown Land in BC that is part of the timber harvesting land base, other than in the north east, to be recognized as Aboriginal Title lands.   Ballpark, I think between 20% and 40% of the land base of BC will be recognized as Aboriginal Title.   I expect more declarations to start coming in a few years and then take up to 20 years till the last of the declarations are made.

Many lawyers will be kept busy because of Aboriginal Title.  Not only for First Nations and the Crown, but also for companies that currently have tenures on Crown lands.   There will be a huge legal bill someone has to pay.

BC will have to eventually rewrite all the laws in the province related to what is now Crown Land.  Tenures currently existing on Crown Lands have all become very uncertain.  If I were the premier I would make creating a strong equal partnerships with First Nations and writing new laws that reflect the reality of Aboriginal Title the main priority of the government for the next five years.

The lack of certainty of existing Crown tenures is going to cause lot of natural resource investment in BC to dry up really fast.   Why would someone move forward with a mineral deposit if they have no idea what the status of their tenure will be in ten years?

Successful natural resource companies in BC will be those with close partnerships with First Nations

BC will also ultimately see the loss of a lot of natural resource revenues because of Aboriginal Title.  The court decision made it clear that the economic benefit from Aboriginal Title land is not allowed to flow to the Crown - this means taxes and other revenues.

from the decision
[70] ........ 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.  As such, the Crown does not retain a beneficial interest in Aboriginal title land. 

BC and Canada could choose to radically energize the Treaty negotiations to try and settle Aboriginal Title issues ASAP.   Treaties would allow for a clear First Nation governance of the land and how the partnership between the Crown and the First Nation would work.   With Aboriginal Title there will be a lot of grey areas when it comes jurisdiction and no one will benefit quickly from that.

For Treaty negotiations to happen BC and Canada need to offer a lot more land at the table - I mean a huge amount of land compared to what has been on offer.    A Treaty settlement has to look better than what may be possible in the courts from Aboriginal Title.   The Tsilhqot'in had as much Aboriginal Title land recognized in one small area of their territory as the Nisga'a received in their Treaty settlement.

That is it for now.  More thoughts on the decision later.

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