A Gift from Chief Justice McLachlin: The Tsilhqot’in Decision on Aboriginal Rights*

On June 26, 2014, in a unanimous decision of the Supreme Court of Canada, Chief Justice Beverley McLachlin gave the First Nations (and the rest of Canada) a treasure map.

Chief Justice McLachlin

It wasn’t a crumpled piece of paper covered with a cryptic scrawl, but a comprehensive legal analysis that defines the elements of Aboriginal title to land and sets out how the federal and provincial governments must act if they intend to intrude on Aboriginal lands.

And here’s the best part.  By forcing the government and industry to respect Aboriginal title to ancestral lands the Supreme Court of Canada reined in the government’s relentless drive for economic development at the expense of practically everything else.

Not only does “X” mark the spot, it marks the sweet spot where a strong economy can be balanced with respect for the environment and concern for Aboriginal (and non-Aboriginal) society.

The Lawsuit

The Tsilhqot’in Nation is a semi-nomadic group of bands living in central BC. They objected to the BC government granting timber licences on their ancestral lands. They were unable to resolve their dispute and launched a lawsuit against the BC and federal government.

A number of provincial governments, First Nations and business organizations piled on, including the BC Business Council which represents the forestry and mining industry. It argued that granting the Tsilhqot’in Aboriginal title to the area would have devastating economic consequences.

Thirty-one years later (!) Chief Justice McLaughlin granted the Tsilhqot’in Aboriginal title over their traditional lands.

First Principles

The Court went back to first principles in its review of Aboriginal title, starting with the not-so-gentle reminder that contrary to what some people may think, the doctrine of terra nullius (that no one owned the land before the Europeans got here) does not apply in Canada.**

Having put the “how dare they” crowd to rest, the Court described the elements of Aboriginal title and what that requires from the government.

Aboriginal title and consent

Aboriginal title gives Aboriginal peoples the exclusive right to decide how their land is used and to enjoy the benefits of that use, subject only to the restriction that the uses must be consistent with the enjoyment of the land by future generations.

Consequently, before a government can intrude on Aboriginal lands it needs their consent; failing which the government must justify its intrusion under Section 35 of the Constitution Act, 1982.

Section 35 requires the government to show that it is intruding to achieve a “compelling and substantial objective.” Objectives may include economic development (ie agriculture, forestry, mining, hydroelectric power) and environmental protection.

The Tsilhqot’in

However, such incursions cannot be justified if the benefits of the intrusion are outweighed by its adverse consequences or if the intrusion would substantially deprive future generations of the benefit of the land.

That’s one heck of a big “but”.

And therein lies the problem for the ongoing development of the oilsands and the transportation of bitumen by Enbridge through Northern Gateway to the West Coast and TCPL through Energy East to New Brunswick.

While the provincial and federal governments are quick to tout the economic benefits of oilsands development, they’re less forthright when it comes to addressing its adverse consequences, particularly any negative impacts on Aboriginal populations. However the Tsilhqot’in decision means the government has no place to hide.

The Lubicon are fighting a number of energy projects within a 10,000 square kilometre area in Alberta. A myriad of Aboriginal bands are opposing the Northern Gateway pipeline route in BC.

These Alberta and BC Aboriginal groups refused to consent to these projects. Consequently the provincial and federal governments must demonstrate a “compelling or substantial objective” to justify proceeding without their consent.

How will the provincial and federal governments proceed? Who knows. The silence from the ministers of energy and Indian Affairs is eerie.

Industry reaction is puzzling. Alex Ferguson of Canadian Association of Petroleum Producers turned the spotlight on to the government, saying that the decision highlights the need for governments to work together to fulfill their legal obligations. As if that wasn’t obvious.

He also said there’s no need to overreact. Overreact? On whose part? The Aboriginal bands who have significantly more leverage now than they had yesterday? The Chinese marketplace that sees yet another obstacle to quick access to Canadian bitumen? The oil producers and pipeline companies who need to explain the impact of the decision to their investors in a way that won’t depress share prices?

The treasure

It will take a while for governments and industry to develop a game plan to work within the confines of the Tsilhqot’in decision.

In the meantime one thing is certain. The Tsihqot’in decision is indeed a treasure map, but with a difference. The buried treasure is not gold, but independence and honour.

Aboriginal groups found independence. Chief Roger William of the Xeni Gwet’in beams from ear to ear when he describes being able to govern the Xeni Gwet’in nation and rely on the natural resources of their land”****Globe and Mail, June 27, 2014, A4.

The Canadian people found honour. The Tsilhqot’in decision allows us to honour the promises made to the First Nations in the Royal Proclamation, the treaties, the Charter of Rights and Freedoms and the Canadian Constitution.

The provincial and federal governments found nothing. They deliberately ignored the promises they made and must leave empty handed and covered in shame.

*Tsilhqot’in Nation v British Columbia, 2014 SCC 44

** Royal Proclamation**(1763), R.S.C. 1985, App. II, No. 1.

***Globe and Mail, June 27, 2014, B6

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10 Responses to A Gift from Chief Justice McLachlin: The Tsilhqot’in Decision on Aboriginal Rights*

  1. Ted Woynillowicz says:

    Harper’s vision of an energy superpower will be drastically curtailed by this decision. He has gutted so many environmental laws through his omnibus bills, shut down top scientists and attempted to portray those concerned about envormental degredation as eco terrorists. As the Council of Canadians’ voluntary chaor Maude Barlow has stated over and over, the only thing left in Harper’s path of destruction were First Nations obligations. How ironic that, given the treatment that FN recieved since first contact, they are in a position to save Canadians from themselves. We can appreciate and learn from the patience, diligence, perseverance and wisdom demonstrated by our First Nations peoples.

    • Ted, great points, particularly your comment that we could all learn something from the patience, endurance, dedication and wisdom demonstrated by our FN peoples. The industry and government response to date has been a rehash of the obvious but nothing of substance. We’ll see whether they have taken the SCC decision to heart by their reaction to the difficult situation that arises when a FN’s claim is asserted but not yet proven (the Northern Gateway situation). The SCC says these situations require consultation that is proportional to the strength of the title claim, the more credible the claim for title, the more consultation (and potentially accommodation) required. Given that inadequate consultation and accommodation could result in a project being halted or canceled a prudent government (and industry) would err on the side of over-consultation, not under-consultation. But this takes patience, time and wisdom. I question whether our prime minister and the BC and Alberta premiers will be up to the task.

  2. Carlos Beca says:

    Great post as usual and what an important subject.
    I very rarely find any positives in our political structure, but this time I realize how valuable is to have a truly independent Supreme Court. Decisions like this one are only possible if the Court is not infiltrated by big money like it is already in the US.
    I also loved Ted’s sentence ‘How ironic that, given the treatment that FN received since first contact, they are now in a position to save Canadians from themselves’. Very true.
    I have serious doubts that the FN will be able to resist the bribes coming soon from the corporations trying to get our resources but at least they now have a choice as to what they will do. FN are after all only human and in many cases extremely weakened.
    The idea that ‘granting the Tsilhqot’in Aboriginal title to the area would have devastating economic consequences’ is the same old same old of the Federal Government and businesses’ broken record. Nothing is more devastating environmentally and economically then the awful unplanned, take all as fast as possible system we now have in place.
    The real problem is that the Federal and Provincial Governments are no longer interested in the protection of our lands and citizens. They are now the business class representatives and no longer understand the difference. The fact that this power arrangement can now suddenly change is a shock to their system.

    • Carlos, you’re absolutely right about the importance of the separation of powers doctrine. Judicial independence is a vital principle of our Constitution. Interestingly, Chief Justice John D. Richard of the Federal Court of Appeal says that the separation of powers doctrine is not a strong in Canada as in some other countries. He refers to the fact that our government has the right to refer questions of law to the Supreme Court of Canada (SCC). The reference question on Quebec secession is an example. This is impossible in the US.

      Nevertheless the judiciary is charged with the responsibility of ensuring that the legislative branch and the executive branch respect the rule of law. In this case the SCC made it crystal clear that Aboriginal rights and treaty rights set out in Section 35 of the Constitutional must be respected.

      Ironically this was exactly the point of Neil Young’s Honour the Treaties Tour and yet governments, industry and many Canadians heaped invective on the man because he dared stand up for the rights of others. I hope they’re taking a long hard look at themselves the mirror in light of this decision!

  3. Elaine Fleming says:

    Yes, I thought Ted’s observation about the First Nations now possibly in a power position to indirectly benefit the Canadian people at large to be thought-provoking. The elected representatives at the provincial and federal levels certainly don’t seem to be able to hold back break-neck development of non-renewable resources in Canada or the resultant damage to our land, water, air, and wildlife. I wonder if this Supreme Court decision going forward will be able to lend focus more specifically on who exactly will benefit from resource extraction and what the net benefits when all the “dust settles”. I don’t know if this was the original intent of this court challenge by the Tsilhqot’in from when it started 20 years ago?

    I have another question, that Carlos sort of touched on, and that is I guess the Tsilhqot’in will be able to sell this land now? I thought I read something about use of the land to benefit future generations of their people. I also wonder why B.C. never wrote up treaties with the First Nations, like other provinces. And, regarding treaties in the rest of Canada, “Treaty Rights” are for use of traditional lands by FN, but ownership is with the Crown, right?

    So many questions!

    • Elaine, I’m certainly not an expert in this area but I’ll take a stab at some of your questions. While I agree that this decision has given the First Nations tremendous leverage, we need to remember that they’ve had the leverage since 1982 when section 35 of the Constitution Act guaranteed “existing Aboriginal and treaty rights”. The big problem was that the federal and provincial governments refused to acknowledge these rights and forced the Aboriginal peoples to go all the way to the Supreme Court of Canada (SCC) for recognition.

      Given that this decision focused on Aboriginal rights and the discussion of benefits occurred in that context I don’t think it will help those who are concerned about the general question of identifying the real net benefits of resource extraction and who gets them. This is a question for our federal and provincial governments. So far their answers have been less than satisfactory so our only real option is to vote them out at the earliest opportunity.

      I don’t think this case gives First Nations who have not signed treaties the right to sell their Aboriginal lands. At para 74 of the decision Chief Justice McLaughlin says Aboriginal title is “collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown”. And the way it’s “alienated to the Crown” is by signing a treaty. (I’m waiting for the ABlawg post on this topic to see if they address it).

      In the 1990s the BC and federal governments started a process to sign treaties with the BC First Nations but negotiations broke down. Apparently the First Nations thought they were getting too little of their traditional lands and the government and BC residents thought they were getting too much.

      Chief Justice McLaughlin made the point that a court should consider Aboriginal culture and practices and compare them in a culturally sensitive way with what is required at common law. She said a court should not distort the Aboriginal perspective by forcing it into “the square boxes of common law concepts” because doing so would frustrate the goal of faithfully translating pre-sovereignty Aboriginal interests into equivalent modern legal rights.

      I think this principle is broad enough to apply to treaty rights as well as Aboriginal land rights. And we’ll get a chance to see if I’m right when the Athabasca Chipewyan First Nations case (partially funded by Neil Young’s Honour the Treaties tour) gets to the SCC. The ACFN are arguing that the provincial and federal governments violated their Treaty 8 rights by allowing oilsands, hydro-electric and uranium industrial projects in the Athabasca delta which are destroying the ecosystem and their treaty and aboriginal rights to hunt, fish and trap. If this decision is any indication the SCC may come down in favour of the AFCN.

      I’m so proud of the Supreme Court of Canada!

  4. Elaine Fleming says:

    Me too, Susan. And, thanks for all the info- you’re a “fount”! There is a real “hole” in our education system regarding our knowledge of First Nations peoples, historically and now their current struggles. Nonetheless, that’s not an excuse for me not to do my own homework now and try to grasp all of these issues! And rather than take it for granted, I need to understand how our legal system functions and the basic principles behind it.

    Good for Neil Young to take a stand on honouring treaties and putting his money where his mouth is! I always liked that guy.

    • Now don’t be too hard on yourself Elaine, when I think about my education I realize that it was sadly lacking when it comes to history, both Canadian history and world history. (It’s extremely galling to see our history rewritten by Hollywood, the Ben Affleck movie, Argo comes to mind, but I digress).

      Just one additional point on the question about whether a First Nations group can sell its Aboriginal lands. Chief Justice McLaughlin said Aboriginal title land can only be alienated to the Crown. She goes on to say that it “cannot be encumbered in ways that would prevent future generations from using and enjoying it; and cannot be developed or misused in ways that would substantially deprive future generations of the benefit of the land.” Seems to me that would put one heck of a restriction on any land sold to a third party. An ABlawg blog posted by Jonnette Watson Hamilton on July 2, 2014 notes that the scope of this limitation and the types of activities that are restricted on Aboriginal lands will be up to future courts to decide.

      These Aboriginal and treaty rights cases are monumental. They’ll change Canada’s future for the better. We live in amazing times!

  5. John Gilberts says:

    Some gift…
    The Rule of Law vs the Rule of Judicial Discretion: The Tsilhqot’in Nation Case – by Bruce Clark

    “…has vested in the non-native courts the jurisdiction to expropriate indigenous sovereignty in the public interest.”

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