|Last week, the Supreme Court of Canada granted a declaration of aboriginal title to more than 1,700 square kilometres of land in B.C.’s central interior to the Tsilhqot’in First Nation.
While the BC Chamber of Commerce is still in the process of reviewing the full implications of the decision, our initial assessment is that this decision, while important, will not result in significant change to the way in which decisions around resource projects are made.
The two aspects of this decision that are of particular relevance and importance are aboriginal title and the implications this will have on how decisions are made regarding the use of the land base.
The significance of this decision is that it is the first time that the Supreme Court of Canada has formally declared aboriginal title to exist in a specified area of British Columbia. It should be noted, the Supreme Court recognised that the concept of aboriginal title exists under Canadian law, being defined as exclusive occupancy at the time of sovereignty. The decision provides clarification as to what constitutes occupancy.
It is important to note that the decision actually establishes a high threshold for title. The decision confirms that title can go beyond permanent village sites and cover relatively broad areas of land. However, the decision also says that these sites require regular and exclusive use by the aboriginal group.
Other first nations may have an even harder time establishing titles given all their overlaps and the fact that they do not have the same history of repelling invaders which they can prove and rely upon.
In the absence of title, decision-making where title is claimed will continue as it does today. Projects that impact land under claim of title will, under the auspices of a Crown requirement, continue to consult and accommodate where appropriate.
Where title has been established, important to note that this is the only case where actual title has been recognised, the decision makes it very clear that the provincial government can continue to regulate and apply its laws to aboriginal title lands, subject of course to meeting the test of “justification.” This means either obtaining consent of aboriginal groups for areas in which title has been proven, or being able to justify infringements of those rights in the absence of aboriginal consent. Justification requires a compelling, and substantial, governmental objective that ensures impairments no further than necessary, and that the benefits must outweigh the adverse effects on the aboriginal interests.
Given the relatively small amount of title established in B.C., and the timely and expensive process required to establish title, we do not anticipate a rush by aboriginal groups to litigate for title.
BC Chamber Analysis
Our initial analysis of this decision is that there are significant positives to much of the Supreme Court’s decision. We know that title must now be well-defined and that many of the claims advanced in B.C. would struggle to meet these conditions. We now also know that the provincial government can continue to govern on land where title has been established.