Historic. Landmark. Watershed. Game-changer.
The language used in the media to describe this year’s Tsilhqot’in Nation v British Columbia Supreme Court decision is enough to make one sit up and take notice. With Tsilhqot’in, the Supreme Court reached a unanimous decision to recognize Aboriginal title to a specific tract of land for the first time in Canadian history. Understanding the implications of this decision, however, can be difficult. It is a decision steeped in centuries of history and decades of litigation, and it is not something that has an immediate and noticeable effect on the everyday lives of most Canadians. But the language used by the media is not hyperbole: the Tsilhqot’in decision is a transformative moment for Aboriginal land rights in this country. This affects all Canadians– both Indigenous and non-Indigenous – and therefore demands our attention.
This blog entry is a product of my attempt to understand the broader implications of Tsilhqot’in. As a non-Indigenous Canadian with a strong interest but little background in Indigenous politics, trying to sort out the complexities of Tsilhqot’in was a valuable endeavour. The decision cuts to the heart of the land claim movement in Canada, as it acknowledges a history of dispossession, incorporates Aboriginal conceptions of land usage, and sets out guidelines for future Aboriginal land claims. I will explore these topics below.
The true basis for this case goes back many centuries to the time before European incursion into North America. For thousands of years, Aboriginal nations across the country, including the Tsilhqot’in Nation in what is now central B.C., hunted, fished and lived on their home territories. They built complex social, political and legal structures, and, in the process, fostered an intrinsic connection with the land on which they lived. The Supreme Court’s decision to recognize the Tsilhqot’in people’s title to over 1,750 square kilometers of their traditional land is powerful recognition of this historic and unbroken connection.
Equally as important as maintaining a connection to their land is the fact that the Tsilhqot’in people never formally ceded their claim to the land. The historic basis for this aspect of the case goes all the way back to 1763 and the passage of The Royal Proclamation. The Proclamation, passed by the British Crown during colonial times, claimed all of North America in the name of King George III, but it also recognized the existence of Aboriginal title and stated that this title could only be extinguished by treaty with the Crown. For the next 250 years, much of modern day Canada was settled by Europeans through treaty agreements with First Nations. The meaning of these treaties and their impact on Aboriginal title is highly contested, but the treaties are nonetheless useful in providing a basis for negotiation between Indigenous leaders and the Canadian state.
However, the Tsilhqot’in people never signed a treaty. In fact, unlike much of Canada, most of B.C. was settled without formal agreements with local Indigenous groups. Without a treaty ceding their claim to the land, and with a strong historical basis for Aboriginal title built upon centuries of land use and stewardship, the door was open to Tsilhqot’in Nation to issue a legal challenge to the Crown. This is exactly what they did, relying on the guarantee in section 35 of the Constitution that “the existing aboriginal and treaty rights of Aboriginal peoples of Canada are to be respected and affirmed” to do so.
Source: Aboriginal Affairs and Northern Development Canada
What does Aboriginal title mean?
In rendering the Tsilhqot’in decision, the Supreme Court concluded a 30-year legal dispute by setting out a definition of the rights and duties conferred by Aboriginal title. They can be summarized in three main points:
- Economic rights
Aboriginal title recognizes the right of the Tsilhqot’in Nation to decide how their land will be used and to reap the economic benefits of development projects within their borders. If any other party wishes to use the land, including the government, they must obtain consent of the Aboriginal titleholders. This means that projects such as mining and logging can still take place, but the terms of such projects will be dictated directly by the Tsilhqot’in Nation.
- Collective and timeless ownership
Aboriginal title is distinct from Canadian common law conceptions of property in that it is defined as land that is timelessly and collectively held. This means that it is subject to two restrictions. First, the land can only be alienated (i.e. transferred or sold) to the Crown. Second, it cannot be used in such a way that would prevent future generations from enjoying benefit of the land.
- No veto
While the recognition of Aboriginal title allows the Tsilhqot’in Nation meaningful control over their lands, it does not give them a final veto. The Crown can still intrude on the land without consent, but such intrusion is subject to several restrictions that ensure proper consultation and a “compelling and substantial objective”.
Although the official decision contains much more detail than I have provided above, it still remains to be seen how each of the prescriptions will be worked out in future cases.
What does this decision mean for future Aboriginal title claims?
The Supreme Court has made rulings on Aboriginal title in the past (see Calder, 1973 and Delgamuukw, 1997), but none have so clearly spelled out what title means in a specific context. Tsilhqot’in is extremely important in this regard. In rendering its decision, the Supreme Court judges established a template for determining future title claims. This template is not rigid; rather, it allows for a context-specific approach that must be “culturally sensitive”. In other words, future adjudication on Aboriginal title claims must consider both Aboriginal perspectives (e.g. oral evidence from elders) and Canadian common law conceptions of possession and occupancy.
This legal precedent is indeed a “game-changer”. There are currently 64 First Nations involved in treaty negotiations with the B.C. government through the B.C. Treaty Commission. Their claims to land title are bolstered by the Tsilhqot’in decision, giving them a newly strengthened negotiating position. For many other First Nations in B.C., Quebec, and elsewhere who neither signed a treaty in the past nor are involved in modern treaty negotiations, there is a clearer path to gaining official recognition of title over their traditional lands. Even those First Nations who have signed treaties may use the decision to challenge government interpretation of those treaties, although there are many obstacles to this strategy. What is clear, though, is that Tsilhqot’in signals a new chapter in land management relations between First Nations and the Canadian state. This chapter has the potential to more closely represent an equal partnership than anything before it.
Continuing the conversation
Above I have explained what I found to be the most important facets of the Tsilhqot’in decision. It is a complex decision, but hopefully I have touched on most of the key points. In two weeks time I will make another blog post. In that post, I would like to engage with the public debate that has arisen as a result of this decision. To gauge public perception and identify common themes, I will speak to people in my life, read other blogs, and analyze online message boards. I also encourage people to leave their thoughts below in the comment section. I’m looking forward to continuing this conversation.
Explanation of the decision from a legal perspective:
Description of Aboriginal title:
Perspectives on the decision: