<e-notes> from fourarrows@rogers.

com 6 July 2014 Edition
Supreme Court of Canada Rules in Tsilhqot’in Case:
The Day Before Treaty: First Nations Have Title of Lands --
‘The End of Denial’;’Legal Earthquake’; ‘Game-Changer’

A Four Arrows Report on Significant Jurisprudence: PART ONE (more coming!)
Thanks to APTN, CBC News, Sean Fine of the Globe and
Mail, Peter O’Neil of the Vancouver Sun,
Tonda MacCharles of the Toronto Star, Miriam Katawazi
of www.rabble.ca,, Randall Palmer of Reuters,
Dene Moore of Canadian Press
Ottawa, Ontario, 26 June 2014 – The Supreme Court of
Canada may not have been conscious that it delivered its
“end of denial” “legal earthquake” “game-changer”
decision in Tsilhqot’in on the 148 anniversary of the
Battle of the Little Big Horn.
Or that anyone thought about it being Canada Day
But nonetheless, in a historic first for Canadian law, the
Supreme Court of Canada has awarded title to the
Tsilhqot’in people over a vast remote area in and around
the Nemiah Valley west of Williams Lake in the Chilcotin
region of the British Columbia interior where they have
fought clear-cut logging efforts conducted with the
approval of the provincial government for nearly three
decades as part of a 150-year struggle. The last 20 years
have been before the courts.
The History of the Case
The current chapter in the dispute over the Tsilhqot'in land
began in 1983 when British Columbia granted Carrier
Lumber Ltd a license to cut trees in part of the Nation’s
territory. The Tsilhqot’in people objected and blockaded a
bridge the company was upgrading.
The Tsilhqot’in launched blockades, forcing the province
to begin talks which went nowhere.
The legal battle began in December 1989 with a filing by
Xeni Gwet’in. The filing was amended in 1998 to include
the whole Tsilhqot’in Nation.
The trial finally began in 2002 and ran for 339 days. The
trial judge J ustice David Vickers travelled to the claim
area, heard from elders, historians and experts while also
reviewing historical texts, including the diaries of
Alexander Mackenzie and Simon Fraser.
The decision William et al v. British Columbia et al, 2004
BCSC 964 (CanLII), <http://canlii.ca/t/1hkgj>
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J ustice Vickers found that the Tsilhqot’in were entitled to
a declaration of Aboriginal title to about 40% of their
total claimed territory. Vickers was not able to make a
declaration of title on procedural grounds. He did,
however, go on to consider how a declaration of title
might affect forestry activities and other matters.
J ustice Vickers devoted a significant portion of his reasons
for judgment urging the parties to engage in the process of
reconciliation outside the courtroom. Instead, the provincial
government appealed his decision.
The B.C. Court of Appeal then faced the case and held that
the Tsilhqot’in had not established title and found the
nation could only claim territory were evidence existed of
extensive use and occupancy. The Supreme Court
eviscerated that position in its current ruling.
The unanimous 8-0 decision written by Chief J ustice
Beverly McLaughlin adopts a broad, expansive approach to
aboriginal title, saying the Tsilhqot'in have rghts to the
land, the right to use the land and the right to profit from
the land. The area is to the south and west of Williams
Lake in the B.C. Interior.
The 81-page decision begins with clear unequivocal words,
“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."
The text continued in straight-forward language. "The
nature of aboriginal title is that it confers on the group that
holds it the exclusive right to decide how the land is used
and the right to benefit from those uses.
“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 to the
economic benefits of the land; and the right to
pro-actively use and manage the land,” said the ruling.
The Supreme Court said that aboriginal title is unlike
individual property ownership. The ruling said Aboriginal
title came with an important restriction, that “it is collective
title held not only for the present generation, but for all
succeeding generations.” It cannot be . . . encumbered in
ways that would prevent future generations of the group
from using and enjoying it. Nor can the land be developed
or misused in a way that would substantially deprive future
generations of the benefit of the land.”
The high court returned to the theme of reconciliation, and
emphasized the Crown’s duty to aboriginal people.
At the heart of the case is the concept of aboriginal title –
how to prove it and how much control it would give a
native group that has it. In 1997, the Supreme Court said
title means a right to possession of land that goes beyond
A chronology of events in the Xeni-Gwet'in
court case over aboriginal title:
April 18, 1990: Xeni Gwet'in Chief Roger
William, on behalf of Tsilhqot'in Nation, files
action in B.C. Supreme Court seeking a
declaration of aboriginal title over 438,000
hectares in B.C.'s Cariboo-Chilcotin region. The
case is called the "Nemiah Trapline Action."
Dec. 18, 1998: William launches a second case,
the "Brittany Triangle Action," over forestry
activities in Tsilqhot'in territories.
Nov. 18, 2002: Trial begins in B.C. Supreme
April 7, 2007: Trial ends.
Nov. 20, 2007: B.C. Supreme Court J udge David
Vickers issues his ruling. All parties – Williams,
the province and the federal government appeal.
Nov. 15, 2010: B.C. Court of Appeal begins to
hear arguments.
J une 2012: Appeal Court upholds right to hunt,
trap and trade in traditional territory but finds title
can only be claimed in areas occupied or used
intensively by the "semi-nomadic" people.
J an. 2013: Supreme Court of Canada announces it
will hear appeal filed by William.
Nov. 7, 2013: Country's highest court hears
J une 26, 2014: Supreme Court of Canada releases
decision upholding aboriginal title.
© Copyright Times Colonist
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the right to hunt and fish on it. But its actual existence on
a particular site had not been recognized by a court
decision. It has, however, been acknowledged by historical
treaties and modern land claims agreements.
A Breach of Fiduciary Duty
The Supreme Court found that B.C. breached its fiduciary
duty to consult with the Tsilhqot’in and that it had no
economic justification for issuing logging permits in the
claimed territory, which sparked the over-two- decade
battle. The province argued that it stood to benefit
economically from logging in the claimed area and also
that it needed to stop the spread of a mountain pine beetle
“Granting rights to third parties to harvest timber on
Tsilhqot’in land is a serious infringement that will not
lightly be justified,” said the ruling. “Should the
government wish to grant such harvesting rights in the
future, it will be required to establish that a compelling
and substantial objective is furthered by such harvesting,
something that was not present in this case.”
Back in 1997, Canada's top court had ruled that
aboriginal peoples were entitled to exclusive property
rights as they occupied land before European powers
exerted sovereignty. But legal scholars said the 1997
judgment failed to make clear what aboriginals needed to
do or demonstrate before they could obtain such property
rights. The judgment Thursday, which pitted the
Tsilhqot'in Nation against the provincial government of
B.C., offered the clarity legal experts sought.
The decision was a major victory for the Tsilhqot’in,
expanding their rights to claim possession of ancestral
lands and to control those lands for all time. The
Tsilhqot’in said in a prepared statement that the ruling
is a step forward toward reconciliation between the
government and First Nations. “Resolving Aboriginal
title reduces conflict, creates the opportunity for
respectful relations and ends an era of denial.”
“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,”
the court said. “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 the
Indeed most of the province’s territory is subject to similar
title claims in the absence of treaties governing relations
between First Nations and the Crown.
Thus the decision has implications for future economic or
resource development where title is held by First Nations.
The high court endorsed the view of the late B.C. Supreme
Court trial judge David Vickers, and said aboriginal title
will flow where native groups can show their occupation of
land in the sense of “regular and exclusive use.” “The
nature of Aboriginal title is that it confers on the group that
holds it the exclusive right to decide how the land is used
and the right to benefit from those uses, subject to the
restriction that the uses must be consistent with the group
nature of the interest and the enjoyment of the land by
future generations.”
The decision upset a B.C. Court of Appeal ruling in 2012
which said there was “a need to search out a practical
compromise that can protect aboriginal traditions without
unnecessarily interfering with Crown sovereignty and with
the well-being of all Canadians.”
The Court of Appeal agreed the Tsilhqot'in had sweeping
rights to hunt, trap and trade in its traditional territory. But
it also agreed with the federal and provincial governments
that the Tsilhqot'in must identify specific sites where its
people once lived, rather than assert a claim over a broad
area. This narrow definition of aboriginal title referred to
“intensive presence at a particular site,” such as salt licks
and rocks used for fishing.
The Tsilhqot’in told the Supreme Court that the appeal
court’s narrow “postage stamp” definition made a mockery
of aboriginal title. That approach was “a blueprint for
conflict and discord, not reconciliation,” the Tsilhqot’in
said in their appeal to the Supreme Court of Canada.
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The Supreme Court blasted the B.C. Court of Appeal ,
finding its definition of “occupancy was too narrow.”
“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,” said the ruling.
“Rather, a culturally sensitive approach suggests that
regular use of territories for hunting, fishing, trapping and
foraging is ‘sufficient’ use to ground Aboriginal title.”
The high court said that Aboriginal title could be declared
over territory “over which the group exercised effective
control at the time of assertion of European sovereignty.”
The Tsilhqot'in, a collection of six communities that
include about 3,000 people, argued the court's decision
failed to recognize the way its people had lived for
centuries. They had few permanent encampments, even
though they saw the area as their own and protected it
from outsiders.
The ruling is a win for Roger William, the chief who in
the name of his Xeni Gwet’in First Nation Government
launched the current title claim. The rest of the bands
joined his bid to expand the Tsilhqot’in title over a large
tract of land, approximately 4,380 square kilometres. The
area is not subject to any competing claim by another First
Nations group, as is the case in many regions of B.C.
where there are overlapping and competing claims.
The Supreme Court agreed that a First Nation can
claim land title even if it uses it only some of the time,
and set out a three-point test to determine land titles,
considering 1) occupation; 2) continuity of habitation
on the land; 3) exclusivity in area.
The court also established what title means, including the
right to the benefits associated with the land, and the right
to use it, enjoy it and profit from it. “Government
incursions not consented to by the title-holding group must
be undertaken in accordance with the Crown’s procedural
duty to consult,” said the ruling. “And must also be
justified on the basis of a compelling and substantial
public interest and must be consistent with the Crown’s
fiduciary duty to the Aboriginal group.”
The court declared that where title is asserted but has
not yet been established, the government needs to
consult in good faith with the aboriginal group in
question and accommodate it where appropriate. Once
aboriginal title is established, economic development
can proceed as long as it has the consent of the First
Nation. Failing that, the government must meet a
“proportionality” test: it must show a law is necessary
to achieve a pressing, substantial, and important public
purpose. Even then, it must go no further than
necessary to achieve that specific goal and that the
benefits “that may be expected to flow from that goal
are not outweighed by adverse effects on the Aboriginal
‘We meant war, not murder’
(Thanks to APTN National News for this information)
The Tsilhot’in defence of their territory began with
settlement. It has not always been conducted through the
courts. During a press conference in Vancouver, some of
the Tsilhqot’in leaders referred to the 1864 Chilcotin War
that ended in the death of at least 19 European settlers and
the hanging of six Tsilhqot’in chiefs.
Back then they faced a planned toll wagon road aimed at
connecting the nascent colony’s Pacific coast through Bute
Inlet to the newly discovered gold fields of Williams Creek,
in the B.C. interior.
The project threatened the already besieged Tsilhqot’in
people facing their first major outbreak of smallpox, spread
largely by infected blankets sold by traders.
“These white people, they bring blankets from people who
die of smallpox,” said former Tsilhqot’in chief Henry
Solomon, in an oral account of the small pox outbreak
contained in a book called Nemiah: The unconquered
country, by Terry Glavine.
“Then he wrap them up and he sell them to these Indians,
then the Indian, he didn’t know, he just sleep on it, them
blankets. Pretty soon he got them sickness, and pretty soon
the whole camp got it. So pretty soon my grandmother and
his sister, they’re the only one that survive.”
The road work began to cause friction with the Tsilhqot’in,
even though some found jobs with the work crews.
There were incidents of road workers raping Tsilhqot’in
girls. The Tsilhqot’in who worked with the crews were
mistreated and denied food.
Then, in the spring of 1864, four bags of flour were stolen
from a road crew’s base camp. The crew’s foreman
threatened the Tsilhqot’in with smallpox for stealing.
J ournalist Melvin Rothenburger, who wrote a book called
the The Chilcotin War, believes this threat may have helped
spark the war. “That could have been an important factor
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because of the fear of smallpox and it had been rampant,”
said Rothenburger, whose great-great grandfather Donald
McLean was killed in the ensuing battles with the
News of the smallpox threat and rapes stirred a group of
Tsilhqot’in to launch what turned into a guerilla war
against the settlers. Of this group, a war chief known as
Klatsassin or Lhatasassine, meaning “We do not know his
name,” came to embody the Chilcotin War.
They fired their first shot on the morning of April 28,
1864. It killed a ferryman who refused Klatsassin and his
party passage.
The next morning, at daybreak, Klatsassin and his war
party descended on the main work crew camp. The cook,
tending the fire, was the first to be cut down by gunfire.
The Tsilhqot’in then severed the ropes of the tents,
shooting and stabbing nine of the crew members to death.
Three managed to escape.
The war party then moved to another camp. There, the
foreman who issued the smallpox threat was killed along
with three other men.
The Tsilhqot’in used their knowledge of the rugged terrain
to their advantage, setting traps, launching ambushes and
eluding colonial parties for weeks that had been sent into
the bush to track them down.
Rothenburger’s greath-great grandfather McLean met his
death after falling into a trap set by the Tsilhqot’in.
McLean followed a trail of wood shavings carved by the
Tsilhoqot’in that led to an ambush. McLean, known to the
Tsilhqot’in as Samandlin, wore a breast plate for
protection, said Rothenburger.
“The Tsilhqot’in knew about this and set it up so they
could get behind him,” said Rothenburger.
With the colony ramping up efforts against the guerillas,
the Tsilhqot’in sought to negotiate peace. Believing they
had been granted immunity, Klatsassin and a group of
chiefs travelled to meet with Frederick Seymour, then the
governor of the colony of British Columbia.
They were shackled in their sleep and taken prisoner.
Klatsassin and four others were convicted of murder. They
were hung at 7 a.m. in what is now Quesnel, B.C., on Oct.
26, 1864.
Before he died Klatsassin famously said, “We meant war,
not murder.”
Two other Tsilhqot’in men also turned themselves in,
offering to pay compensation for what they did. They were
also arrested and sentenced to death. One managed to
escape, but the other man named Ahan, was hung in New
Westminster on J uly 18, 1865.
To this day, the Tsilhqot’in are still trying to recover his
The provincial government apologized for the hangings in
Postscript: John Robson, editor of the New Westminster
Columbian, who would later go on to serve as premier of
the province, warned at the time: “Depend on it, for every
acre of land we obtain by improper means we will have to
pay for dearly in the end, and every wrong committed
upon those poor people will be visited on our heads.”
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an informative <e-note> by fourarrows@rogers.com 6July 2014
The Initial Reaction to the Decision
Grand Chief
president of
the Union of
B.C. Indian
Chiefs, was
with Chief
William, who
brought the
case, and
chiefs when
they learned of the top court's decision, and said the mood
in the room was "absolutely electrifying." "We all heard
the decision at the same moment, and the room just
erupted in cheers and tears. Everybody is absolutely
jubilant. It's very emotional," Phillip told CBC News. "It
only took 150 years, but we look forward to a much
brighter future. This without question will establish a solid
platform for genuine reconciliation to take place in British
"It’s a game-changer – we are in an entirely different ball
game,” Phillip added. "I didn't think it would be so
definitive – I was actually prepared for something much
less. It's not very often that I'm without words, and I'm
quite overwhelmed at the moment."
"This is the end of denying rights and title," Chief Joe
Alphonse, Tsilhqot'in tribal chairman, said in a
statement. "This case is about us regaining our independ-
ence, to be able to govern our own nation and rely on the
natural resources of our land. We are ready to move
forward in this new relationship with government and
industry. That work starts today.” Chief Alphonse called
the ruling “amazing” and said it marked the beginning of a
“new Canada.”
Chief Alphonse said the ruling also sent a message to
Canada’s political leaders. “It sends a strong message to all
provincial leaders and Stephen Harper to deal with us in an
honourable and respectful way,” he said. “This decision
will bring much needed certainty for First Nations,
government and industry. You want certainty for your
investors to come into British Columbia and Canada? Then
deal with us as First Nations people, deal with us in a
meaningful way, in a respectful way."
Bernie Mack, one of six Tsilhqot’in chiefs, left no doubt
that proponents and governments will have to demonstrate
a “substantial and compelling public purpose” to gain the
consent of First Nations. “The days of easy infringement
are gone,” he said.
Art Sterritt, executive director of the Coastal First
Nations, said the ruling puts the onus back on government
to consult with First Nations and not industry. “It’s
absolutely a wonderful day for First Nations.""The federal
government had punted it over to Northern Gateway and
now we know that if you’re going to do projects like
Northern Gateway, they need our declaration and if they
don’t have that we can declare that project dead.”
Ghislain Picard, Regional Chief for Quebec/ Labrador
said, “On behalf of the First Nations across the country, we
extend our congratulations and convey our gratitude to
Chief Roger William, the Xeni Gwet’in and the Tsilhqot’in
National Government for their leadership and determina-
tion in bringing this case forward and taking on this
challenge over the past 25 years.”.
“This is truly a landmark decision that compels us all to
embark on a new course. The court has clearly sent a
message that the Crown must take Aboriginal title seriously
and reconcile with First Nations honourably. This decision
will go down in history as one of the most important and
far reaching ever rendered by the Supreme Court of
Canada. They’ll be greater partnership. They’ll be more
coming from our people – what we are willing to do and
how we are going to do it and how it’s going to happen.”
– photo by Darryl Dyck, The Canadian Press
Grand Chief Stewart Phillip, of the Union of
B.C. Indian Chiefs, smiles during a news
conference in Vancouver, B.C., after the
Supreme Court of Canada ruled in favour of
the Tsilhqot'in First Nation/
– photo by Nick Procaylo, PNG
Tl’etinqox Chief Joe Alphonse speaks at a news conference
where The Union of B.C. Indian Chiefs reacted to the landmark
Supreme Court Williams decision.
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Xeni Gwet’in Chief Roger William , whose name was
used in the original filing responded to the decision by
saying, “We take this time to join hands and celebrate a
new relationship with Canada. We are reminded of our
elders who are no longer with us. First and foremost we
need to say sechanalyagh (thank you) to our Tsilhqot’in
Elders, many of whom testified courageously in the courts.
We are completing this journey for them and our youth.
Our strength comes from those who surround us, those
who celebrate with us, those who drum with us.”
Chief William expressed not only thanks but relief that
their engagement in good faith with Canada’s highest
court on this matter had been met with respect. “First
Nations across this country have taken legal action,
entered into treaty, practised their language and
demonstrated use of the land and through this they have
supported us – we thank you.”
Lake Babine Nation Chief Wilf Adam said the decision
confirmed that aboriginal title is a reality in B.C., and that
it extends well beyond First Nation’s traditional village
sites. The First Nation of 2,400 members is also opposed
to the Northern Gateway project, and has had concerns
about mining projects. “In my opinion on this decision,
Northern Gateway is dead,” said Adam. “They will never
get approval from us.”
He stressed that governments, and companies
that want to develop in Lake Babine’s
traditional territory, must acknowledge its
aboriginal title by engaging respect-fully and
proposing meaningful accommod-ation. “At a
minimum, this means that any development
must be sustainable and safe for our land and
resources, and that it must provide significant
economic benefits to Lake Babine,” said
Haida Nation president Peter Lantin said the
Tsilhqot'in case strengthens his island
community's title claim, which is being
prepared for trial. The Haida claim includes the
surrounding ocean off B.C.'s North Coast,
which Lantin expects to use against plans for oil tankers
from the Enbridge Northern Gateway proposal.
Perry Bellegarde, chief of the Federation of
Saskatchewan Indian Nations, says the Supreme Court
ruling on land rights bolsters arguments for revenue sharing
with First Nations. "We've always said we should mutually
benefit from the land and resources. With this decision, it
will breathe more life into that concept of resource revenue
Jody Wilson-Raybould, AFN Regional Chief of B.C.,
said the decision means “we now have the opportunity to
settle, once and for all, the so-called ‘Indian land question’
in B.C. and elsewhere in Canada where Aboriginal title
exists through good-faith negotiations. This has to be a
wakeup call for governments, both provincial and federal,
and we look to Mr. Harper to actual-ly see this as the
fundamental impetus to sit down at the table and
meaningfully move towards reconciliation.”
Federal Indian Affairs Minister Bernard Valcourt said
in a statement that the government will review the
"complex and significant issues" in the decision. "Our
government believes that the best way to resolve
outstanding Aboriginal rights and title claims is through
negotiated settlements that balance the interests of all
Canadians," Valcourt said in the statement, adding that the
government has concluded four treaties in B.C. since 2006,
with others under negotiation.
Mr. Valcourt did not explain why, if the government felt
negotiated settlements were the best way to tell with First
Nation claims, the federal government had refused to
Communications with the Tsilhqot’in Nation are through
Myanna Desaulniers, Communication Coordinator, Tsilhqot'in
National Government, 253 – 4th Avenue North, Williams Lake,
BC V2G 4T4, Phone (250) 392-3918 Fax (250) 398-5798

Xeni Gwet’in Chief Roger William
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negotiate settlement based on aboriginal title, and had
opposed the William case for so many years.
NDP critic Jean Crowder welcomed the ruling and said
the governments at both levels have for too long taken the
chance that aboriginal title would never be recognized in
going ahead with development. "Now, all levels of
government will need to stop and consider whether or not
they've met the duty to consult or justified an
infringement. Governments will have to meet this
obligation so development can continue, with First
Nations determining how to use the land, not third-parties,
to the benefit of many Canadians."
Ms. Crowder said the court ruling shows the federal
government should set up a “protocol” for First Nations
consultation on future resource development projects, so
that everyone is aware of the proper duty to consult and
obtain aboriginal consent.
“It would be a way better process if you had that protocol
in place and First Nations were at the table right from the
outset so that you didn’t get to the permitting and approval
stage only to be told, ‘Oops we need to go back now and
do the consultation that if we had of done three years ago
we might not be in this spot,'” said Crowder. “Companies
then understand exactly what they have to do."
The court also said governments may have to reassess
prior conduct and legislation, which could prompt court
challenges of past government actions, including
controversial 2012 amendments to the Canadian
Environmental Protection Act and the Navigable Waters
Protection Act, Crowder said in a statement.
Liberal aboriginal affairs critic Carolyn Bennett said
the landmark decision reaffirms "that governments cannot
avoid their constitutional duty to consult and accommo-
date the rights of Indigenous Peoples across Canada."
B.C.’s Attorney General, Suzanne Anton called the
decision “significant and helpful” but was vague about
how so, even though the government was well aware the
ruling was coming. “We’re taking time to read this
decision and to analyze it. What I can tell you from the
province’s point of view is our very strong commitment to
continuing to work with First Nations.
As for treaty negotiations, Anton would only say they will
continue. She said the government would continue to work
on environmental issues with aboriginal groups, but said
Northern Gateway approval, opposed by many aboriginal
groups, remains off the table. “We will not consider that
pipeline until that condition is met,” Anton said. She said
the decision provides “additional clarity” but she urged all
parties to continue with treaty negotiations. “We all know
the success that comes when we choose to negotiate rather
than litigate.”
Saskatchewan Ministry of Justice’s Aboriginal Law
officials say the ruling will have little effect in this
province, and the position on resource revenue will not
change. "This decision won't have an impact in
Saskatchewan," said Sonia Eggerman.
Saskatchewan Cabinet spokesperson Karen Hill said,
"The resource revenues collected by the Government of
Saskatchewan are shared with all residents as they provide
important services for all Saskatchewan people, including
First Nations."
Alberta Ministry of Aboriginal Relations spokesman
Martin Dupuis told Bloomberg BNA that the government
is reviewing the ruling. “It would be premature to comment
on it in detail at this time,” he said. “Alberta continues to
maintain open and productive dialogue with Aboriginal
communities and our colleagues across Canada to address
aboriginal issues.”
The decision will lead to “intensified negotiations”
between the federal and provincial governments and First
Nations over land title claims, says Gordon Christie,
associate professor of First Nations legal studies at the
University of British Columbia. “I think the Court has
been signalling that for many years now, that they just wish
that the provinces and the federal government would get
together with aboriginal communities and negotiate these
matters,” Christie told CTV News Channel on Thursday
“And what they’ve essentially done today is give First
Nations the kind of negotiating stance they need for this
to actually happen. . . We won't really know the
implications, I think, probably for a number of years,
maybe a decade or so.
“Until yesterday, we didn't actually have any piece of
land in Canada that was clearly held under aboriginal
title. We knew it existed but we hadn't had any First
Nation that actually was able to establish that they had
title to a piece of land. That's changed. So we now know
that it's possible – finally."
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -9-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Prof. Dawn Mills, from the University of British
Columbia's Department of Mining Engineering, said
the decision is an opportunity for industry to work with
First Nations to evolve. "This is an opportunity to
critically look positively — not negatively — to look
positively at best practices," she said. The mining industry
model was already changing, Mills said. First Nations
have been open for discussion and open for business, she
said. "It's not business as usual but I think it's better
business than usual."
Prof. William Lindsay, director of the office of
aboriginal affairs at Simon Fraser University said that
governments and companies will have to talk environ-
mental stewardship, along with royalties and jobs, said
"It's new, but I don't think people need to be afraid of it,"
Lindsay said. "Now we have certainty. Now we know
where the clout lies and people have to get together and
work through these issues."
West Coast Environmental Law attorney Jessica Clogg
told Bloomberg BNA the ruling could impact energy
pipeline projects such as the Enbridge Northern Gateway
Pipeline and Kinder Morgan's Trans Mountain pipeline
twinning, both of which would move oil to Canada's west
Clogg said the court established strict environmental rules
that neither aboriginal nations nor governments can do
harm land for future generations. She said that in cases
where consultation on projects is in question, the govern-
ment may be required to begin those processes over.
“Because there are indigenous people really blanketing all
of B.C., it affects everything that goes on,” Clogg said.
“Resource companies need to act today with this in mind.”
Bill Gallagher, a lawyer and former negotiator for
Indian Affairs, told Travis Lupick of Straight.com, “This
ruling is an expression of the culmination of the rise of
Native empowerment.” Currrently, industries looking to
exploit resources on First Nations territory are advancing
their economic interests through exploiting ‘…the
traditional territories of the most disadvantaged
communities in the country. And they have been
massively empowered by this ruling…’
Gallagher said the decision has “provided clarity” and
“crystallized” issues that have been debated and appealed
in many previous cases. “This is the capstone ruling,” he
said. “They have written this case up in such a legally
bulletproof fashion that it is a masterpiece of
aboriginal-law jurisprudence.” Gallagher argued that
stakeholders, including corporations, should therefore view
the Tsilhqot’in decision as a “liberating experience”.
“They now at least know what is expected of them: to
address First Nations one on one, to extend a hand of
corporate friendship,” he said.
Gallagher predicted the days of industry relying on
government to settle disputes with First Nations will
become a thing of the past. “They’ll have to now go out and
bring First Nations on as partners,” he said.
Canada’s Atlantic provinces were the first areas settled by
the British. There the British were outnumbered by First
Nations who included Mi’kmaq and the Maliseet, and so
often focused on signing ‘peace and friendship treaties’ –
the primary purpose of which was to tamp down hostilities
between First Nations and colonizers. In 1999 the Supreme
Court ruled that these treaties had no application for
settling land issues on unceded land. Gallagher believes
that Tsilhqot’in is likely to set precedent for these claims as
Bob Johnstone, writing in the Regina Leader-Post, said
the decision will likely give encouragement to First
Nations, like the Athabasca Chipewyan First Nation, which
is suing the Alberta and federal governments over potential
environmental damage and alleged adverse health affects
from oilsands developments upstream in Ft. McMurray.
Also, much of the land required by the Northern Gateway
project in B.C. is not covered by treaties, but the Supreme
Court ruling make its clear that aboriginal title will require
rigorous negotiations between the First Nations, the
government and the proponent, Enbridge. “Saskatchewan,
which is covered by treaties, will not emerge unscathed by
the Supreme Court ruling.”
Calgary lawyer Allisun Rana represents a number of
British Columbia First Nations whose land covers a
massive shale gas deposit that companies such as
TransCanada Liquified Natural Gas would like to exploit.
She told Elizabeth Grant of Open Democracy that she
credits the Supreme Court with recognizing the need for
stronger direction and greater clarity throughout Canada’s
courts in the face of myriad legal actions attempting to stop
resource development on First Nations land: ‘They see a lot
of [these Aboriginal cases opposing resource development]
and again, again, First Nations have to return to the court. If
this doesn’t tell governments what they should be doing,
nothing will.’
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an informative <e-note> by fourarrows@rogers.com 6July 2014
Quebec Aboriginal rights lawyer James O’Reilly has
represented a variety of First Nations in Quebec –
including the Cree and Innu. According to him, land
claims are currently being negotiated by nine separate
groups in Quebec and – despite the fact that the ruling is
not expected to apply to more developed areas that are no
longer used traditionally – he believes that up to 40% of
Quebec’s contested territory could be determined by this
Brad Armstrong, a partner with law firm Lawson
Lundell LLP in Vancouver, told Drew Hasselback of the
Financial Post, “This decision [will result] in reasonably
large tracts of land in the province [being] privatized.
They will be held by First Nations, and they will have the
exclusive right to determine howe those lands will be
In any case, the era of "business as usual" in dealing with
First Nations in resource development in Canada is over.
Decision could ripple into Alberta, lawyers say
Thanks to Bob Weber, Canadian Press

The Supreme Court of Canada decision could affect many
Alberta court cases between First Nations and govern-
ments over oilsands development, lawyers say. "I can
think of a few law firms that are probably redrafting their
briefs right now," said Larry Innes, a member of a
Toronto law firm representing the Athabasca Chipewyan,
downstream from the Fort McMurray region.
Roger Townshend, a member of the same firm, said
while the Tsilhqot'in decision didn't break any new legal
ground, it did show the court wants governments to
interpret aboriginal rights broadly on traditional lands.
"Really what was happening was Canada and B.C. were
interpreting those doctrines in an extremely narrow and
rigid way and the court said, no that's not the way to do it.
You've got to look at things more holistically."
Victoria-based lawyer Robert Janes, who represents a
number of Alberta bands, said the court has raised the bar
for governments seeking to approve major developments
that could infringe on aboriginal land-use rights. "The
court seems to be sending quite a strong message that
infringement should not be allowed to drift to being a
general public-interest type of analysis," he said.
"It's expected to be more rigorous than how it's been
approached in the past. Likewise, the duty to consult is not
intended to be a polite chit-chat and do what you're
planning to do anyway."
The Alberta and federal governments are facing a number
of court actions that attack many of the recent changes
made to regulating energy development. Many involve
issues around aboriginal consultation, consent and the
impact of development on treaty rights.
The Beaver Lake Cree, for example, are in court arguing
that so much piecemeal development has been approved on
their lands that their treaty rights are increasingly
meaningless – an issue close to the heart of the decision,
said Innes. "When (governments) consider the public
interest they must do so in a way that balances the rights of
all Canadians with aboriginal rights," he interprets.
"You can't simply do it on the basis of what's good for the
economy. You cannot, as a Crown, go in and say 'It's good
for the guys in Calgary, too bad about Fort Chipewyan.'
You actually have to turn your mind to what would be the
best outcome for both."
Although B.C. has few treaties, J anes agreed the Tsilhqot'in
ruling will be a factor in the Alberta cases. "We will
certainly be using it in our arguments."
“When you get to stage where you're looking at these
large-scale developments inAlberta which potentially
infringe rights, then the court's saying you're going to be
held to a very high standard. There has to be a compelling
public purpose."
Innes said he expects to cite the judgment at regulatory
hearings into TransCanada's Grand Rapids pipeline project
from Fort McMurray to Edmonton, now under way.
"The validity in which the way consultation issues are
addressed by the Alberta Energy Regulator or rather
summarily dispensed with by the Alberta Consultation
Office is what we're putting forward," he said. "There is no
way in way in hell that the process that has been set up
could possibly meet those duties."
by Wendy Steuck
Supreme Court land title ruling may open up
First Nations financing
Vancouver, 2 July 2014 – A landmark legal decision by the
Supreme Court of Canada involving aboriginal title is
raising speculation about whether the newly-affirmed title
could be used as leverage to obtain financing or negotiate
with companies that want to build, say, a wind or
hydro-power project on the land in question.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -11-
an informative <e-note> by fourarrows@rogers.com 6July 2014
“Before [the ruling], we had two types of land in the
province – fee simple … and Crown land,” says David
Austin, a Vancouver lawyer. “We now have a third
concept – “aboriginal title land”. . . but given that
aboriginal title is held on a collective basis, it would not
likely provide lenders the security of fee-simple property.
But he expects new financing models could emerge.
“It does not appear that First Nations can pledge their
aboriginal title lands for security for money required for
economic development,” Mr. Austin said. “But I am very
confident that this problem can be worked out.”
J oan Young, a partner with McMillan LLP law firm in
Vancouver is less convinced. “I don’t see a bank relying
on that [aboriginal title] in terms of advancing funds to a
First Nation,” Ms. Young said. “If you’re thinking with
your banker’s hat on, you would ask, ‘Do I give money to
somebody when another party can still go in there and use
it for another purpose? Probably not.”
Pipelines. Gold mines. Liquefied natural gas.
Coal. Logging. Fisheries
The list of British Columbia natural resource projects
potentially affected by a landmark ruling from the
Supreme Court of Canada is long and lucrative. And
industry, policy-makers and indigenous leaders alike will
be sorting through the fallout from the decision on
aboriginal title for some time to come.
A coalition of B.C. business groups had intervened in the
case, telling the Supreme Court that a wide definition of
title would threaten the economy. The provinces’ right to
approve projects to develop natural resources was in
question – “aboriginal title lands” are no longer to be
considered “Crown land”.
The coalition commented the ruling will be read with great
care by industry, native groups, claim negotiators,
governments and lower courts alike and will have
repercussions for years to come in all kinds of resource
development projects, such as the Northern Gateway
pipeline, on contested lands in all parts of Canada.
Alex Ferguson, VP of policy and environment for the
Canadian Association of Petroleum Producers, told
Bloomberg BNA the ruling gives clarity on consultation
on developments. Moving forward, he said, companies
need to examine their work to ensure they are engaging in
proper consultation with aboriginal groups.
David McLelland, chairman of the Association for
Mineral Exploration British Columbia (AME BC), said in
a J une 26 news release the ruling affirms the government's
duty to consult and accommodate. “Members of AME BC
recognize that respectfully engaging with First Nations
early and often creates mutual understanding, trust and
respect,” McLelland said. “We have seen that mutual
benefits can often occur when this approach is taken by
everyone involved, including industry, First Nations and
News On The International Markets Too
In an article by Paul Vieira, the Wall Street Journal said the
historic ruling could have repercussions for resource
companies operating in the country. It would “have
ramifications across the country where there are unresolved
land claims between Canada and aboriginal groups. . . the
ruling opens the door for other aboriginal groups with
unresolved land claims to seek title now that there is a
better understanding of the evidence required. However,
legal experts say this could take years amid negotiations or
legal battles with governments.
British Columbia has hundreds of unresolved land claims.
The decision adds conditions, however, that would be
expected to make it more difficult, although not necessarily
impossible, for developments such as pipelines, mines and
forestry to proceed without aboriginal consent.
There are no new pipelines being proposed to pass through
this particular area. Enbridge Inc's planned Northern
Gateway pipeline route lies well to the north. However the
decision could stiffen the resolve of native groups to try to
block projects or demand extra concessions.
Natural resource companies had warned would create
investor uncertainty and that recognition of broader
territorial title would undermine their ability to attract
capital and realize a return on resource projects.

B.C. companies nervous over SCC Decision;
Tahltan Nation announces intention
to launch legal fight to block coal mine
By Gordon Hoekstra ghoekstra@vancouversun.com,
Vancouver Sun
Vancouver, B.C., 27 June 2014 – B.C. businesses worry a
landmark high-court decision that broadens First Nations’
land rights could create barriers to development and stall
key industrial projects worth billions of dollars.
Proposed projects that could be affected include Enbridge’s
$7.9-billion Northern Gateway oil pipeline, Kinder
Morgan’s $5.4-billion Trans Mountain oil pipeline, and
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -12-
an informative <e-note> by fourarrows@rogers.com 6July 2014
tens of billions more in liquefied natural gas plants and
gas pipelines.
Mining and forestry projects could also be at risk.
However, industry representatives also cautiously offered
the opinion that the decision could provide more clarity on
how resource development must be conducted with First
Nations, which could end up being a positive for the
The unanimous Supreme Court of Canada ruling largely
accepted a 2007 B.C. Supreme Court interpretation of
what aboriginal title means for the Tsilhqot’in in central
B.C., rejecting a far more narrow view delivered by the
B.C. Court of Appeal in 2012. Ultimately, it granted the
Tsilhqot’in title to 1,750 square kilometres of largely
undeveloped land.
“A person could be optimistic about it and say this helps
clarify the ground rules … Maybe this is going to help
projects move forward,” said Lael McKeown, a past
president of the Kitimat-Terrace Industrial Society and a
construction business owner with her husband Dave.
“The other thing is, there should be an expectation that
First Nations, as they are given more control of the land …
they also assume the responsibility of maintaining a level
of resource development so we can sustain our economy,”
said McKeown.
Terrace and other northwest B.C. communities such as
Kitimat and Prince Rupert are just emerging from a
serious downturn in the forest sector with the help of
prospective LNG projects (backed by global energy
heavyweights such as Petronas, Shell and Chevron), but
also a rebuild of Rio Tinto’s aluminum smelter, Imperial
Metal’s Red Chris gold and copper mine and the
prospective Northern Gateway oil pipeline.
“With the LNG possibilities, this is the first time there’s
been huge optimism in the area. It would be pretty
dampening to have (the court decision) stall some LNG
projects because we only have a small window of
opportunity to make them happen if we are going to get
our niche of global market,” said McKeown.
“Obviously this decision has a big impact on resource
extraction,” she said.
Other B.C. businesses and industrial groups said Thursday
they were still reviewing the decision given its complexity
and ramifications for business and industry, issuing a
stream of cautiously-worded statements.
“Our initial view is that today’s Supreme Court decision is
an important clarification of aboriginal title and provides
for greater certainty around the application of provincial
law and regulation on the land base in British Columbia,”
said B.C. Business Council president Greg D’Avignon.
He noted that B.C. companies have already reached
hundreds of beneficial agreements with First Nations, and
the province is using tools such as revenue-sharing to
reconcile economic activity with aboriginal rights and title.
Council of Forest Industries president J ames Gorman.
warned that regulatory certainty is a critical factor in the
forest industry’s ability to do business. “Today’s decision
further emphasizes the importance of working closely with
First Nations and building on the important relationships
we have worked hard to establish over the past decades.”
Mining Association of B.C. president Karina Brino
acknowledged the decision confirms that resource
development over land where aboriginal title is asserted
must, by law, be preceded by meaningful consultation.
Kinder Morgan Canada president Ian Anderson said the
decision aligns with the value the company places on
developing strong relationships with its aboriginal partners.
“We aim to connect directly one-on-one with aboriginal
communities to address concerns, and look for
opportunities with mutually beneficial outcomes,” he said.
Davis LLP Forestry Law Bulletin says that within
Tsilhqot’in is the “spectre” for lawsuits on account of
damages for timber harvesting under the authority of the
Forest Act prior to a declaration of Aboriginal title. “While
sufficient consultation and accommodation may minimize
damages in any particular instance, the problem is that
most, if not all, ‘Crown lands’ subject to harvesting rights
under the Forest Act are likely also subject to some claim
to Aboriginal title.
“With the Tsilhqot’in Nation Decision, the Supreme Court
of Canada has demonstrated that even a nomadic First
Nation with a relatively sparse population can succeed with
a claim of Aboriginal title over a relatively expansive tract
of land.
“This result will undoubtedly have some effect upon the
Crown’s contingent liability calculus.”
Early Actions
Within hours after the ruling, the Tahltan Central Council
announced its intention to prepare its claim against the
Province of British Columbia and Fortune Minerals Ltd for
the controversial $789-m Fortune Minerals’ Arctos
Anthracite Coal project proposed for Mt. Klappan in the
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -13-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Klappan area of Tahltan territory. It has retained J oseph
Arvay, Q.C. of Farris & Co. to lead the litigation team.
The Arctos Anthracite Coal project is located in a
critically important area that requires long-term
management and protection to preserve cultural and
ecological values for the Tahltan people. Mount Klappan,
which is part of an area known as Sacred Headwaters
which feeds three of the region’s major salmon-bearing
rivers – the Skeena, Stikine and Nass. The Tahltan people
are united in opposing an open pit coal mine in the area.
The Algonquin communities of Timiskaming, Wolf Lake,
and Eagle Village congratulated the Tsilhqot'in Nation for
achieving a historic win before the Supreme Court of
Canada in the William decision on Aboriginal Title. “We
are optimistic that in the face of this game changing court
decision, the federal and provincial governments will now
quit stalling and get on with negotiating a formal
consultation and accommodation protocol with our three
First Nations regarding land-use planning and natural
resource development on our Aboriginal Title territories, "
said Chief Terence McBride of Timiskaming.
Chief Harry St. Denis of Wolf Lake said as a consequence
of this unequivocal Supreme Court of Canada decision,
“We believe that now is the time to chart a new course,
based on the recognition and affirmation of our Aboriginal
Title and Rights."
The territory covered under this Statement of Assertion of
Rights and Title, measuring over 34,000 square
kilometres, straddles the Quebec-Ontario border along the
Upper Ottawa River with a large portion of it located in
Ontario. The evidence, which has been in preparation for
almost 20 years, shows that these communities are
descended from the Algonquin bands that traditionally
used and occupied the territory.
Kwakiutl Nation Puts Douglas Treaties
On Notice
The Tsilhqot’in ruling reaffirms that the 1851 Vancouver
Island Douglas Treaties proves Aboriginal title, said
Chief Coreen Child in a public statement issued J uly 2.
“We are deeply moved by the resolve of the Tsilhqot’in
people. The ruling will have far reaching impacts on First
Nations and the Crown governments. For Kwakiutl, the
Supreme Court of Canada’s declaration
The Kwakiutl had intervened on the Tsilhqot’in case to
address two fundamental issues – the proper test of
Aboriginal title and the application of provincial legislation
on Aboriginal title lands.
The Tsilhqot’in win reinforces a BC Supreme Court
decision, made on J une 17, 2013, which found the Province
of British Columbia had breached its legal duties by
denying the existence of Kwakiutl’s inherent title and
treaty rights. Further, the BC decision found that BC and
Canada had failed to implement and respect the Crown’s
163 year-old Douglas Treaties, and ‘encouraged and
challenged’ the governments to begin fair negotiations
“without any further litigation, expense or delay.”
“"The Supreme Court of Canada rejected the "small spots"
strategy argued by Canada and recognized and affirmed
that our view of Territorial Title is the basis for engage-
ment with First Nations",” says Councillor Davina Hunt.
Since 2004, the BC government has been granting the
removal of private lands from Tree Farm licenses located
within Kwakiutl territory without Kwakiutl consent.
Consequently, businesses, companies, and governments
have exploited Kwakiutl lands with impunity.
“BC forestry decision-making is one example of Treaty
infringement,” says Councillor J ason Hunt. “In 163 years,
the Crown, built entire economies on North Vancouver
Island without First Nations consent. They have exploited
our lands and waters, and marginalized our people.”
The Kwakiutl believe that Crown governments and industry
will have to meaningfully engage on a deeper level with
when proposing to make decisions or conduct business on
First Nations territories.

For further information contact: www.algonquinnation.ca:
Chief Harry St. Denis, Wolf Lake 819-627-3628; Chief Terence
McBride, Timiskaming 819-629-7091 (English/Francais); Chief
Madeleine Paul, Eagle Village 819-627-6884 (English/Francais);
Peter Di Gangi, Algonquin Nation Secretariat 819-723-2019
Chartrand v. The District Manager, 2013 BCSC 1068 (CanLII),
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -14-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Tsilhqot’in is “ Transformational”:
Geoff Plant, former Attorney General, B.C.
How the Supreme Court changed British Columbia
To understand why last week’s Supreme Court of Canada
decision in Tshilqot’in is so important, it is helpful to
know what the Court actually decided.
There were three key issues or questions. First, what is
the test for aboriginal title? Put another way, where will
you find it? Second, what does it mean to have aboriginal
title? Is it really ownership of land, or something quite
different, say, just a right to be consulted about its use?
Third, what authority does the provincial government have
over aboriginal title lands? Are they like Indian reserves,
where provincial land laws do not apply, or something
On the first and third questions, in particular, there were
sharply different views taken by the trial court and the BC
Court of Appeal. Those views were based on those
courts’ interpretations of prior court decisions. The
Supreme Court has now resolved those differences.
They’ve made clear what has been argued about for a long
time. And that clarity, in my view, will have a profound
impact on the use and development of lands and resources
in British Columbia.
Aboriginal title is the way our law gives effect to the fact
of prior aboriginal presence on the lands of what is now
Canada. It’s not just the right to engage in culturally
important practices such as fishing, trapping, hunting and
forage - those activities are recognized and protected as
aboriginal rights. Aboriginal title is how the law
recognizes the indigenous claim that “this land has always
been ours”.
But putting it that way does not necessarily answer the
question: what land are you talking about? Is it the land
that has been most intensively and continuously occupied,
say, villages and their immediate surroundings? Or is it
larger areas of land, the territories over which First
Nations have exercised dominion by using and regulating
access for resource use purposes, assigning rights of
ownership, and excluding other First Nations?
In terms which do not do justice to the complexity of the
question, but at least make the differences clear, it is
sometimes said that this is the debate between the “postage
stamp” theory of aboriginal title, and the
“mountaintop-to-mountaintop” theory. If the latter, then
large parts of the province will be aboriginal title lands
because most First Nations in BC exercised dominion over
large territories, with clearly recognizable internal rights of
resource use and ownership, and histories of defending
their lands against other First Nations.
The Supreme Court of Canada decided it’s not just villages,
it’s traditional territories. I say this not just because of the
Court’s statement of the requirements for the proof of
aboriginal title, but also because of the Court’s actual
decision - reversing the Court of Appeal - that the
Tsilhqot’in had established their claim for title over a large
part of their traditional territory. . . It is abundantly clear
that aboriginal title must exist over vast tracts of the

As the Court makes clear, aboriginal title means ownership
largely as we would recognize it. It includes the right to
decide how the land will be used, and to occupy, enjoy,
possess, and manage it. Put plainly, it’s their land. There
are limits, of course. Aboriginal title land cannot be used
in a way that would prevent future generations of the group
from using and enjoying it. It is held communally, not
individually. The court also made it clear that aboriginal
owners are entitled to the economic benefits of their land,
and they can use the land “in modern ways, if that is their
There is little that is new law in this, aspect of the court’s
decision, but it all means much more once it becomes clear
that aboriginal title exists in large parts of the province -
and indeed, wherever in Canada aboriginal title has not
definitively been surrendered to the Crown by treaty or
The constitution assigns exclusive legislative authority over
“Indians and lands reserved to the Indians” to the federal
government. For this reason, provincial land laws
generally do not apply on Indian reserves. What about
aboriginal title lands? Some courts, including the trial
judge in this case, have held that aboriginal title lands are
federal enclaves, where provincial land laws cannot apply.
It’s one thing of course to imagine the application of such a
principle in a postage stamp aboriginal title context. But if
aboriginal title exists throughout the province, what would
happen to the authority over land and resource development
that the provincial government has exercised for over a
century, and on which our resource economy is founded?
The Supreme Court of Canada has made new law here, by
Mr. Plant is now counsel in Vancouver at law firm Gall Legge
Grant & Munroe LLP/ He also is a board member at Steelhead
LNG Corp. Mr. Plant blogs at http://theplantrant.blogspot.ca
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -15-
an informative <e-note> by fourarrows@rogers.com 6July 2014
clarifying that a controversial rule of constitutional
interpretation known as the principle of
“interjurisdictional immunity” does not apply to aboriginal
rights and title.
Accordingly, the province still has the authority to
regulate land and resource development on aboriginal title
lands. But that authority is severely restricted by
requirements that have been established by the courts as
they have interpreted the recognition and affirmation of
aboriginal rights and title established by section 35 of the
1982 Constitution Act.
In short, government may infringe aboriginal title, but only
if the infringement can be justified. J ustification requires
consultation with the aboriginal titleholder. It means that
the infringement must be minimal, consistent with
government’s fiduciary responsibilities to aboriginal
peoples, and backed by “a compelling and substantial
objective.” And it may mean offering accommodations.
This language is familiar to those who know the Supreme
Court of Canada’s decisions in cases such as Sparrow,
Delgamuukw and Haida Nation. What the court has
consistently been trying to do is to create a balance in
which aboriginal rights are given strong recognition,
without completely displacing government’s ability to
govern in the larger public interest. What’s important here
is that the stakes are higher, once you recognize that large
parts of British Columbia are not just territories claimed
by aboriginal peoples but, most likely, owned by them.
The court repeatedly makes it clear that the preferred
method of authorizing development on aboriginal title
land is to obtain aboriginal consent beforehand. In simple
terms, if you have aboriginal permission, then you don’t
need to justify the infringement. You avoid the
uncertainty that is created by the need to justify where
aboriginal title is asserted but not yet proven.
Absent consent, government will not know if it has
justified an infringement unless and until it has
survived a court challenge. This is inherently risky: as
the court says, “if the Crown begins a project without
consent prior to Aboriginal title being established, it
may be required to cancel the project upon
establishment of the title if continuation of the project
would be unjustifiably infringing.” Rather than
proceed in the hope that the development can be
justified, the better course is to obtain consent
There are many circumstances in which a First Nation may
be willing to consent to an infringement of their asserted
or proven title. But almost certainly, if the infringement is
in pursuit of an economic development objective - a forest
licence, a hydro-electric dam, or a pipeline project -
consent will come with a price tag. Aboriginal people are
unlikely to agree to the creation of economic value from
their land unless they have a share in that value.
The new law here is the court’s decision that the province
still has legislative authority over aboriginal title land. But
while the province still has the power to regulate, it’s
clearer than ever that it will only be able to exercise that
authority if it is willing to share the benefits of economic
activity with the aboriginal owners of the land on which it
is proposed to take place.
And of course, there is no requirement that First Nations
consent to that activity. They may refuse, either because
the price - the benefit - is not high enough, or because the
cost - in environmental terms - is too high. In such
circumstances, government may only proceed if it meets
the high burden of the requirements of justification.
What does all this mean? I am in the camp of those who see
this decision as transformational both as a matter of legal
doctrine and, equally importantly, in its impact. It matters
that the Supreme Court has, for the first time in its history,
declared the existence of aboriginal title on specific lands
outside reserves. It matters that it has done so by conclu-
sively rejecting the postage stamp view of aboriginal title.
Only a fool would downplay the significance of this
judgement for the rest of British Columbia.
While it is certainly true that the court has not drawn
specific boundaries of aboriginal title land anywhere
outside Tsilhqot’in territory, it has nonetheless inescapably
redrawn British Columbia. It has raised the stakes for
aboriginal participation in economic development and
complicated provincial land and resource decision-making
in ways that may take years to sort out.
But to contend that all this is important is not to say that the
sky just fell on British Columbia. There is nothing in this
decision that need necessarily increase conflict or halt all
It will certainly cause many First Nations and project
proponents to take a second look at their plans and
strategies. But only, in my view, if government fails to
recognize that this time out, the rules really have changed,
and that now, more than ever, there is a need for real
political leadership, provincially and federally, on this
all-important file. Now is not the time for governments to
pause while they study their way into inaction. Now is the
time for something quite radically different.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -16-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Welcome to the new B.C. It’s their land:
The Supreme Court ruling on Aboriginal title
is a judgment for the ages

by Vaughn Palmer vpalmer@vancouversun.com,
Vancouver Sun
Victoria, B.C., 27 June 2014 – Three decades ago Nisga’a
Chief J ames Gosnell declared in the midst of the national
constitutional debate that aboriginal people owned British
Columbia “lock, stock and barrel.”
Back then he generated headlines and more than a little
outrage and disbelief. Today, thanks to a judgment for the
ages from the highest court in the land, we should admit
that he was well on the way to being right.
For as Supreme Court of Canada Chief J ustice Beverley
McLachlin observed Thursday in recognizing title for the
Tsilhqot’in people over a sizable chunk of the province,
“from their perspective, the land has always been theirs.”
So it was, so it is and so it is destined to remain for all
“This gives them the right to determine, subject to the
inherent limits of group title held for future
generations, the uses to which the land is put and to
enjoy its economic fruits,” wrote McLachlin in a
decision joined unanimously by seven other judges.
Hers was an up-to-the-moment version of title, not one
that would confine native people to the traditional uses of
fishing rocks and salt licks: “Like other landowners,
Aboriginal titleholders of modern times can use their land
in modern ways, if that is their choice.”
But even as she looked to the future, McLachlin rooted her
definition of Aboriginal title in the oldest of legal
authorities, the English common law, and its equation of
ownership with general occupancy of the land: “A general
occupant at common law is a person asserting possession
of land over which no one else has a present interest or
with respect to which title is uncertain.”
The Europeans who settled this province neglected to
secure clear title from the owners who were already here.
Ironically, they also imported the legal system that
allowed those earlier land owners to reassert their rights,
albeit more than a century (and counting) later.
In Denial About Aboriginal Title
Note, too, that the particulars of this case go back to an
award of timber cutting rights in 1983, meaning it overlaps
with nine premiers and successive Social Credit, New
Democrat and B.C. Liberal administrations. B.C.
governments of every political stripe have been in denial
about the meaning of aboriginal title for a long time.
While the specifics of the ruling only apply to the claim
brought by the Tsilhqot’in, the high court provided a guide
for other First Nations seeking similar recognition over
their traditional territories.
The onus is on them to demonstrate that they occupied their
traditional territories in sufficient fashion, continuously and
exclusively. The Tsilhqot’in were able to do that in a
remote valley with no overlapping claims from other First
Nations. Pointedly, they also excluded private property
from their claim.
Not all of the province’s 200 recognized First Nations may
be able to meet the test in like fashion. But one can expect
that many will, with significant consequences for the
province and its economy.
There was some concern that the high court might write the
province out of the picture because land reserved for First
Nations is federal jurisdiction. But Chief J ustice McLachlin
preserved the provincial jurisdiction over management of
resources, albeit in stunted fashion where it would run up
against aboriginal title. Valid: “Legislation aimed at
managing the forests in a way that deals with pest invasions
or prevents forest fires.” Not valid: “The issuance of timber
licences on Aboriginal title land for a direct transfer of
Aboriginal property rights to a third party.”
The latter may have every forest company and other
holders of timber cutting rights wondering if they’ll soon
be negotiating with a new landlord.
The judgment did indicate that the federal and provincial
governments could encroach on aboriginal land for projects
in the broader public interest. Examples cited: “The
Chief James Gosnel, Nisga’a Nation, 1982
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -17-
an informative <e-note> by fourarrows@rogers.com 6July 2014
development of agriculture, forestry, mining, and
hydroelectric power, the general economic development of
the interior of British Columbia, protection of the
environment or endangered species, the building of
infrastructure and the settlement of foreign (meaning
non-native) populations to support those aims.”
Even then, governments would have to consult
extensively, minimize infringement, compensate
adequately, and be prepared to prove they have met those
standards in court.
Thus the provincial authority over land and resources
is substantially diminished and First Nations would
appear to have secured a near veto over development
within their traditional territories.
Welcome to the new B.C., where the rule of law now
incorporates a delicate balance between European and
aboriginal concepts of rights and title. Still it is
recognizably the rule of law.
Thinking back to the comment at the outset of this column,
Chief Gosnell has long since gone to meet his maker and
his Nisga’a people have since made a treaty. Before he
died in 1988, Chief Gosnell had this to say about the
meaning of his words.
“When I said we owned the place, lock, stock and barrel,
nobody asked me, ‘J immy, what do you mean by that?’ he
told journalist author Terry Glavin. “Well it’s the
beginning point of negotiations. That’s what it is. We own
the whole thing. You want my land? Let’s negotiate.”
Then it was an invitation, perhaps even a dare. In the new
British Columbia defined by the Supreme Court of
Canada, there’s no longer any choice. Lets get on with it.
A Supreme road map
on rights, duty
A Supreme Court of Canada decision has better defined
what is meant, and owed to First Nations by the term
"aboriginal title" in this country. A long-sought victory for
a collection of First Nations in central British Columbia
has obvious implications for development on Crown land
in areas not covered by treaty, most obviously the
Northern Gateway pipeline.
The decision confirmed the Tsilhqot'in Nation's title to a
vast tract of land around Williams Lake. It is in line with
previous rulings on aboriginal rights, but it is the first time
the Supreme Court has granted aboriginal title to a First
The court stressed the need for honest recognition by both
parties – First
Nations and
governments – of
the need to
respect and
accommodate the
interests of each
impinges upon
territory and uses,
such as hunting
and fishing.
The B.C.
government, or
any province
dealing with
development of
Crown lands claimed by bands without treaty, will have to
make vigorous effort to win the buy-in of First Nations
before proceeding with their plans.
That imposes on all governments a duty to consult and
accommodate those interests. Resolving conflicting
interests in the courts is a time-intensive and ultimately
regrettable way of settling disputes. The court's sage advice
is particularly meaningful as Canada enters a new era of
pipeline development to move its vast supply of oil and gas
to markets overseas.
The Tsilhqot'in decision serves notice those First Nations
must come to the table and consider reasonable efforts to
meet their concerns. But it is the governments, federal and
provincial, that shoulder the duty to consult and to work
with the First Nations – the responsibility cannot be handed
off to private corporations, consultants or agencies.
The Tsilhqot'in claim to the land took more than 30 years to
be recognized and now must be addressed for logging to
proceed. The better way to protect the interests of all is to
move expeditiously to sign land-settlement agreements.
Any First Nation or government that would choose to hold
hostage their mutual interests in protracted, expensive
battles will have to answer to the courts, which now have
another guide from the Supreme Court to follow.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -18-
an informative <e-note> by fourarrows@rogers.com 6July 2014
The claims are just.
But the Supreme Court
ruling means chaos
by Gordon Gibson
Imagine that you have been involved in a very long, very
important negotiation extending over years, a power
struggle in a game with uncertain rules, with each side
holding its cards very close to the vest. Imagine some
progress is finally being made, and then into the room
walks an outsider who hands one side four aces and a
joker. The situation is suddenly entirely new and no one
knows quite what to do. The wheels fall off for a long time
– this is what this decision will do to the B.C. treaty
negotiation and “reconciliation” process.

Alarmist? No. It’s exactly what happened in 1997, when
the Delgamuukw decision on aboriginal title came down,
an equally momentous event. The negotiators on all three
sides (federal, provincial and aboriginal) took years to
regroup, but progress was again being made – until the
Tsilhqot’in decision.
The Supreme Court has now defined aboriginal title in an
expansive way. Title confers the exclusive right to control
that land in a much stronger manner than ordinary
Canadians with private property. Any activity on that land
must have consent from the relevant nation. (This award
of 1,700 square kilometres was to a small subgroup of the
Tsilhqot’in Nation. There are about 200 Indian Act Bands
in British Columbia.)

The key word is “consent.” The old rule was
“consultation and accommodation if required.”
Lacking consent, governments still have a right to
“infringe” on title in certain circumstances but must
pass high hurdles of justification – another recipe for
This is a major shift in the balance of power and will
rightly elevate aboriginal expectations. But the other side
is that deals will freeze until things are sorted out, which is
bad for everyone. This first award of aboriginal title will
surely result in a mushrooming of claims throughout the
The upshot will be that major resource projects, pipelines,
mines and the like will face the kind of uncertainty that
investors hate. (The new certainty will be more litigation.)
Many projects will simply be abandoned and new
opportunities will be spurned. There are British
Columbians who will say, “Hooray!” These are the sort
who believe that money comes from banks and food comes
from supermarkets and don’t understand what pays for
health care.

This commentary does not dispute the justice of First
Nations claims, nor give any credit to governmental
wisdom. The treatment of our First Nations has been
awful. For four years, I sat on the Gitxsan Nation’s side
of a treaty table and will say without hesitation that
governments were not bargaining in good faith. Our
proposals were imaginative and negotiable. The
government representatives’ mandates are narrow and
inflexible – everyone agrees with that. The blame for
the current situation lies squarely in the fat laps of

So, we have a mess. B.C. Premier Christy Clark has a
natural-gas pipe dream for provincial riches. Stand by for
aboriginal title claims all along the proposed routes under
the new law, which will allow significant new attempts at
toll-gating. This will either frighten off proponents or eat
up the province’s hope of tax revenues. We have a narrow
window on liquid natural gas, which may now close as
competitors occupy the markets.

Mining was making a comeback in B.C. Then the giant
New Prosperity project was shot down, with aboriginal
objections a major factor. Look for more of this while the
new world of aboriginal title gets sorted out.
The solution, if any, comes in two parts. The first is to
genuinely treat First Nations claims with respect. The
provincial government has made a lot of progress, but
Ottawa remains in the dark ages. It is going to cost a lot of
money – many, many billions – and take a lot of cabinet
time, but so it should.

The second part is being honest with everyone. It is the
duty of governments to facilitate the development of the
economy, and they are going to have to firmly lay down
rules that all parties will be able to rely upon. Governments
have been politically frightened of aboriginal peoples since
Oka, but they still have a duty to the general public.
There is an honourable way out, but, alas, it involves facing
the facts.
Gordon Gibson is a well-known B.C. columnist and the author
of A New Look at Canadian Indian Policy: Respect the
Collective – Promote the Individual.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -19-
an informative <e-note> by fourarrows@rogers.com 6July 2014
First Nations mistaken in their celebration
of Supreme Court ruling
Ian Mulgrew, Vancouver Sun columnist
“Welcome to Colonial Courtrooms,” should have been the
title of the Supreme Court of Canada’s landmark
aboriginal rights judgment.
While B.C. natives were busy last week celebrating the
court’s affirmation of their “aboriginal title,” they should
have paid closer attention to the fine print.
In spite of all the hand-wringing about threats to resource
development and the land mass of B.C., this is a big
victory for governments.
In the unanimous 8-0 decision, which dismissed with nary
a nod the last half century of strident native assertions of
sovereignty, the high court said B.C. natives are not unlike
any other litigant squatter.
First they must establish they are the same people who
have been living on and using the land forever, and then
their rights will be decided by governments through talks
or, in the end, by its appointed judges.
No longer will rhetoric about government-to-government
discussions have currency – Chief J ustice Beverley
McLachlin decreed “aboriginal title flows from
occupation in the sense of regular use of land.”
McLachlin skirts issues of governance and sovereignty
and notes only that “aboriginal land rights survived
European settlement and remain valid” unless
extinguished by treaty or otherwise.
Although aboriginal peoples have some extra rights
constitutionally, government can still expropriate or place
easements on their land – just as they can to anyone else’s
in the name of the greater good.
Like the rest of us, the natives have the right to take their
case to court, said J ustice McLachlin.
As long as the government negotiates in good faith and is
willing to cut a reasonable cheque, any mine, industrial
development or pipeline can proceed.
How radical. There is no native veto.
Natives may be able to establish aboriginal title but once
they do, they don’t appear to be much better off than
non-native landowners in a fee-simple dispute with
government. Like the rest of us, they can tell it to a judge
– and we all know how that works.
Their control of the land, insofar as they can benefit from
it, is constrained by the community nature of their rights
and the need to look after the interest of future generations,
which again presumably is subjected to judicial review
given the fiduciary obligations involved.
Consider as well that if Tsilquot’in is a benchmark, we
could hand the same deal to B.C.’s roughly 200 other First
Nations and still have two-thirds of the province left.
What they won here was an area of some 1,700 square
kilometres — less than the size of Metro Vancouver — a
wilderness with about 200 residents, a handful whom are
This 339-day trial was an embarrassment: Private lawyers
got rich and the costs were in excess of at least $40-million.
The dispute in its broadest sense involved at most a group
of six bands numbering 3,000 people and raw, isolated land
that isn’t worth a fraction of the cost of the litigation.
The Supreme Court should have pointed that out, and
castigated both levels of government for ignoring their duty
and obligation to the Tsilquot’in instead of dragging them
through the courts.
There are fewer than one million First Nations people
across the country and this decision is irrelevant to most of
them because they have treaties. Most of the country’s
non-status Indians are in this province and it is here that the
Supreme Court decision has impact.
In B.C., the old colonial administration stopped signing
treaties, leaving most of the province uncovered, and no
successor government signed pacts.
There are 155,000 First Nations people in B.C. – only 45%
who live on a reserve – and they are hobbled by poverty
and other disadvantages that are too numbing to recite.
This decision is a death knell for their dreams of
sovereignty and the opening bell for a new native
land-and-resource exploitation rush.
With this judgment, the focus shifts from the recognition of
native self-government and the devolution of powers to
appropriate First Nations structures to divvying up the pie.
We will see a burgeoning of the already crowded industry
of land-claims lawyers, consultants and native ethno-
cultural-historiographers and a blizzard of new litigation.
Think this marathon, decades-long court case is unique?
J ust wait.
This decision has brought clarity but it’s a clarity that
brings consequences that I think many natives may not
Chief J ustice McLachlin calls it the new “governing ethos
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -20-
an informative <e-note> by fourarrows@rogers.com 6July 2014
… of reconciliation.”
All I hear is a new phrase for assimilation, and all I see is
a roadmap for non-aboriginal interests and governments to
achieve their ends.
We can infringe on native title as long as we justify it as a
“necessary part of the reconciliation of Aboriginal
societies with the broader political community of which
they are part.”
Resistance is futile, come on down aboriginal brothers and
sisters and be part of European litigation culture.
Hmmm, heck of a victory.
That’s a game-changer all right, but maybe not in the way
natives think it is.
Lavish First Nations subsidies
promote fanciful thinking
By Lorne Gunter ,QMI Agency
Here’s a proposal for dealing with First Nations’
objections to resource development (and projects such as
pipelines) on land they claim is theirs by tradition: Let’s
have the federal government cut off annual subsidies to
reserve governments.
That way, First Nations would have to decide whether or
not to allow development based on the same criterion the
rest of Canadians use to decide their financial priorities.
Can we afford to? Can we afford not to?
Without the billions in tax dollars annually showered on
First Nations, chiefs and councillors would have to choose
with their heads rather than their sentimental hearts.
This is similar to my argument that Quebec should lose
much of its annual equalization subsidy. Quebec govern-
ment makes foolish fiscal choices all the time because it
can. It doesn’t have to own up to its own poor judgment –
it can count on Ottawa’s billions year after year.
Quebec provides such lavish social benefits as half-price
university and college tuition for in-province residents. It
also offers cheap, cheap daycare, while at the same time
running up huge annual deficits.
The Quebec government has also refused to develop
resources such as shale gas and oil out of “green”
concerns. If developed, shale alone could bring Quebec’s
treasury nearly $2-billion a year.
So the only reason Quebec can offer such rich benefits to
its citizens is that the provincial government receives $8-
to $10-billion in annual equalization payments.
But why should taxpayers in the rest of the country
subsidize Quebecers’ social fantasies? That province
should have to maximize all its own-source revenue
potential before receiving a single dime from the rest of
Indeed, this logic should apply to every province, just as it
should also apply to First Nations. After all, First Nations
are the most heavily subsidized of all Canadians.
The Supreme Court has ruled that First Nations can apply
for title to huge tracts of land way beyond the boundaries of
their reserves. And if successful at winning title, they can
have an effective veto over most development on these
broad, traditional hunting grounds.
The court’s ruling was a little more nuanced than some
reports would indicate, but not much more. “Aboriginal
title flows from occupation in the sense of regular and
exclusive use of land,” Chief J ustice Beverley McLachlin
wrote. This will not always be an easy standard to satisfy.
A present-day First Nation will have to show that its
ancestors routinely hunted, fished or harvested over land it
is claiming as its own. Moreover, it will have to show that
competing First Nations didn’t also make “regular” use of
the same tracts. But once such title is established (and
during the whole process to establish whether or not title
exists), the justices decided governments have an obligation
to seek approval in advance from any First Nation making a
claim against the land where develop-ment is proposed.
This will likely turn out to be a huge can of worms.
Many First Nations have fallen under the thrall of radical
environmental groups backed by billionaire American
lefties. If nothing else, Thursday’s ruling gives the
aboriginal-environmentalist alliance a powerful new club to
hold up Canada’s economic advancement for years.
However, the biggest reason First Nations feel comfortable
stalling or even halting resource projects is the fact they
can survive on their current taxpayer subsidies of $17,000
to $25,000 for every man, woman or child on reserves.
Such lavish subsidies permit First Nations to indulge in
fanciful thinking because they do not have to factor in the
cost to themselves and their families of rejecting
So end the subsidies and encourage more rational land-
claims negotiations.
<e-notes> editorial comment: The Treaty negotiations were
explicitly to prevent dependency. It is the failure of governments
to keep the Treaty promises that has passed the bill to taxpayers.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -21-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Canada’s First Nations
The atlas of King George:
A 250-year-old promise
to indigenous peoples still binds
The Economist
WHEN King George III proclaimed in 1763 that Canada’s
indigenous peoples had rights to their ancestral lands, it
bought peace with the locals who outnumbered and
sometimes outfought the British colonists. But as the
balance of inhabitants shifted – indigenous people now
account for only 4.3% of the population – governments
took an increasingly narrow view of that promise. In some
cases they ignored it completely.
On J une 26th the Supreme Court of Canada provided a
sharp reminder that King George’s word is still law.
The Court ruled that the Tsilhqot’in First Nation had title
to 1,700 square km (650 square miles) of land in the
western province of British Columbia. Unlike many First
Nations groups (as Canada’s indigenous Indians are
known) outside BC, the Tsilhqot’in, who number about
3,500, never ceded rights through a treaty to their remote,
mountainous territory. When the province’s government
granted logging rights to a private company in 1983, the
Tsilhqot’in fought back through the courts. The
unanimous Supreme Court decision is the culmination of
that battle.
The decision will have wider effects. Gordon Gibson,
author of a book on Canadian Indian policy, predicts it
will cause chaos and cast a pall on the development of
natural resources. Ecstatic indigenous leaders think it will
give them more say over resource projects across the
country. The lawyer who represented the Tsilhqot’in in
court noted that the proposed Northern Gateway pipeline
to carry Alberta crude to the west coast, approved by the
federal government in J une, crosses land that could be
subject to similar claims.
Although this was the first time the Supreme Court of
Canada had affirmed indigenous title to a specific parcel of
land, it had been inching towards this moment since 1973.
That was when it recognised that indigenous title existed.
Later cases clarified that the Crown did not have a
pre-eminent claim on territory not covered by treaty. In its
latest ruling the court said that the nomadic Tsilhqot’in
could claim areas where they routinely hunted and trapped
in addition to sites where they lived.
“It’s a step rather than a leap,” says Bob Rae, a lawyer and
former MP who now specialises in indigenous law. The
ruling applies to unceded land and not to territory covered
by the numerous treaties in much of the rest of Canada.
Governments retain the right to override indigenous title,
but only for what the court called “compelling and
substantial” objectives.
That said, companies with their eye on Canada’s natural
resources have seen that indigenous groups are increasingly
asserting their legal right to be consulted before
development takes place on their territory. The Supreme
Court helpfully pointed out that obtaining the consent of an
indigenous group in advance will help governments and
firms avoid a lot of legal grief.
The biggest impact is likely to be felt in BC, very little of
which is covered by treaty because successive provincial
governments refused to recognise the existence of
indigenous title until forced to do so by court rulings in the
1990s. The BC government has been dragging its heels in
treaty negotiations and opposed the Tsilhqot’in in court.
Resource companies wanting certainty for their investments
will now add their voices to those of the indigenous groups
in seeking treaties.
– photo by Darryl Dyck, The Canadian Press
Companies with their eye on Canada’s natural
resources have seen that indigenous groups
are increasingly asserting their legal right to
be consulted before development takes place
on their territory.
The Supreme Court helpfully pointed out that
obtaining the consent of an indigenous group
in advance will help governments and firms
avoid a lot of legal grief.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -22-
an informative <e-note> by fourarrows@rogers.com 6July 2014
by Brian Henderson
Supreme Court B.C. land-claim ruling
has staggering implications
for Canadian resource projects
Vancouver, 26 June, 2014 – Objections raised by B.C.
aboriginals to proposed logging in their traditional hunting
grounds have resulted three decades later in the clearest and
farthest-reaching decision on Indian land claims and title,
with the Supreme Court of Canada upholding on Thursday
a lower court ruling that gives First Nations effective
control over vast tracts of territory outside their reserves.
While the ruling deals specifically with litigation over
1,700 square kilometres in B.C.’s central interior, for
centuries home to six Tsilhqot’in Nation bands with a
common history and culture, it will influence — and likely
instigate — more land-based claims across Canada.
Thursday’s decision establishes conditions aboriginal
groups must meet to press collective rights on territories
outside their settlements or formal treaty boundaries.
Written by Chief J ustice Beverley McLachlin, the
unanimous ruling says that aboriginal title “flows from
occupation in the sense of regular and exclusive use of land
… Occupation sufficient to ground aboriginal title is not
confined to specific sites of settlement, but extends to tracts
of land that were regularly used for hunting, fishing or
otherwise exploiting resources and over which the group
exercised effective control at the time of assertion of
European sovereignty.”
It means that economic development proposed by
non-aboriginals – such as resource extraction and pipeline
activity – requires explicit consent from host First Nations
on land where the Supreme Court’s expanded concept of
land title is established.
Without agreement, proponents must show the need for
development on traditional lands is pressing and
substantial. They must also financially satisfy aboriginal
groups. As they did previously, host governments will
become involved.
On land where aboriginal title is merely asserted,
governments must at least consult with local First Nations,
and, if appropriate, “accommodate” their interests. The
word was left open to interpretation.
Aboriginal groups celebrated Thursday’s decision as soon
as it was announced. Some took shots at their historic
adversaries. “We are pleased the court did not succumb to
the fear-mongering advanced by the provinces and industry
groups,” said Cheryl Casimer, an executive with First
Nations Summit, which says it speaks on behalf of B.C.
aboriginals involved in treaty negotiations. “Instead, the
court has given a solid, considered decision based on the
Constitution and precedent case law.”
The implications are staggering: In B.C., for example, First
Nations opposing projects such as the Northern Gateway
pipelines may no longer need to raise blockades or
anticipate lengthy court battles in order to stop shovels
from hitting the ground. With Thursday’s ruling, they may
assert title and prevent outside “intrusions” on the basis of
their “occupation,” or proven historic use.
That’s what one Tsilhqot’in Nation community attempted
in 1989, after a Prince George-based forest products
company submitted to the B.C. government a plan to log
blocks of forest on territory used by their people but
considered by governments as Crown land.
In response, the Xeni Gwet’in declared the area off limits
to commercial exploration, logging, mining and road
building. Henceforth, they said, non-natives could ask
permission to “come and view and photograph our
beautiful land,” and hike and camp subject to “our system
of permits.”
Litigation commenced and the forest products company
was eventually prevented from logging certain blocks.
Other companies applied to log in neighbouring lands. A
blockade went up, keeping logging trucks from entering the
More battles were waged in the courts and in Tsilhqot’in
communities; meanwhile, B.C.’s then-NDP government
continued granting logging permits to private, non-First
Nations companies.
A pair of Tsilhqot’in legal actions were consolidated in
2000 and two years later, the matter went to trial in B.C.
Supreme Court. “There is a fundamental dispute between
the province and Tsilhqot’in people on the issue of land
use,” noted the trial judge, David Vickers. “The result of
this litigation has been to bring logging in the Claim Area
to a halt.”
According to the Supreme Court of Canada ruling,
governments must show compelling reasons to “justify any
incursions on Aboriginal title lands.” Pest and forest fire
prevention were given as examples.
Expect to hear similar demands from other First Nations
across Canada.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -23-
an informative <e-note> by fourarrows@rogers.com 6July 2014
If We Do It For “Aboriginals”,
Why Not Protect Property of All Canadians?
by Andrew Coyne, Postmedia News
The Supreme Court’s Tsilhqot’in decision, as everyone
instantly recognized, is a legal earthquake. Though in some
ways a summation of the court’s previous rulings, it is the
first to confer aboriginal title to a specific piece of land,
and the first to define it in concrete terms.
In so doing, it radically extends previous lower court
conceptions of title, to include not only the actual
settlements historically occupied by aboriginal groups, but
all lands over which they can show they “exercised
effective control” in a continuous and exclusive fashion, as
for example traditional hunting and fishing grounds.
Where aboriginal title has been established, governments
will normally be obliged to obtain the consent of the
titleholders to proceed with development; or where consent
is not granted, may proceed only subject to the usual
conditions by which rights may be overridden: They must
have a pressing and substantial purpose, the infringement
of title must be the minimum necessary to achieve it, and so
on. The mere assertion of title is enough to impose a duty
of consultation pending resolution of the claim, in
proportion to its legitimacy.
As such, it is clear, the decision is also an economic
earthquake. At a minimum, it will greatly complicate future
resource-development projects, at considerable cost both to
their proponents and the wider community. This is not only
true in British Columbia, whose territory, in the absence of
the kinds of formal treaties that were signed in the rest of
the country, is subject to overlapping aboriginal claims
adding up to more than 100% of the total, but in the rest of
Canada as well.
And yet the decision was, by and large, greeted with
equanimity. This is quite remarkable, on its face. The
decision was hardly a foregone conclusion: Precedent-
setting in itself, it overturned a B.C. Court of Appeal
ruling, rejecting with it the arguments of both the federal
and provincial governments. At a stroke, it has handed
native groups enormous bargaining power, not only with
regard to specific development proposals, but in the
broader negotiations over treaty rights.
As a Vancouver lawyer put it, “the result will be that
reasonably large tracts of (Crown) land in the province will
be privatized.”
I do not say this to be in any way critical. The unanimity of
the court lends the decision particular weight in legal terms.
And the practical effects may well be as benign to the
wider community as they are beneficial to aboriginal
communities themselves.
Environmentalists should rejoice that what were formerly
Crown lands, subject to the usual short-term political and
business temptation to over-development, will now be put
under more direct ownership, by groups with both a vested
interest in preserving them from despoliation and the legal
authority to enforce it. Business groups, meanwhile, are
already touting the benefits of greater “certainty”: with
clear title and recourse to the courts, aboriginal groups may
feel less need to resort to blockades and other forms of
And yet the broadly favourable reaction to the decision has
a simpler explanation, though it is no less remarkable for
that. It is, I think, rooted in a basic respect for rights. The
majority has interests, we understand, but the minority has
rights, and while those rights are not absolute – contrary to
some of the more excited reactions, provincial and federal
law will continue to apply on aboriginal lands – they cannot
simply be trampled over.
They have those rights, what is more, because the majority
agreed they should. As esoteric as some of the arguments in
this case may seem, the concepts are familiar in other
respects. Aboriginal title, as enumerated by the court, is
informed in part by common-law notions of possession,
adapted to aboriginal traditions; though not alike to fee
simple ownership, it resembles it in important ways.
But whatever its philosophical foundations, it is a legal
reality today, not by virtue of common law or “inherent”
right, but because of the written constitutional law of this
country: from the Constitution Act 1982 all the way back to
the Royal Proclamation of 1763. It is the authority of the
Constitution of Canada that the court invokes to defend
aboriginal title, and no other. Common law can be
overridden by statute. Inherent rights still need courts to
enforce them.
It is constitutional entrenchment that gives shape to rights,
and it is democratically elected governments that write
constitutions. The “inconvenience” of aboriginal title for
governments and developers is one we have taken upon
All of which raises an interesting question. If we are agreed
to constitutionally protect the property rights of some
Canadians, why do we shrink from doing the same for
others? Recall that the same Constitution that entrenched
aboriginal rights, from which we now see derived
aboriginal title, declined to protect the right to own
property — a right that is also founded in common law, and
that is often spelled out in statute, but was deemed
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -24-
an informative <e-note> by fourarrows@rogers.com 6July 2014
unworthy of constitutional entrenchment. Like aboriginal
title, the right to property is not absolute: In the
constitutions of other countries, it is typically expressed as
the right not to be deprived of one’s property except by due
process of law, and with just compensation. And yet at the
time it was considered expendable. It would be too costly
to have to compensate property holders for infringing on
their rights. It would be inconvenient.
Suppose, then, a government wishes to put a power line
through a particular stretch of land. If the land is subject to
aboriginal title, all of the rights the court has now
delineated kick in. But if it is merely someone’s property,
no such constitutionally guaranteed rights apply. Now that
we have defined and accepted aboriginal title as a
constitutional right, is it not time this discrepancy was
Supreme Court Sends Tsunami Wave Through
Oil, Gas, Mining and Forestry Industries
by Gary Park
In an epic shift, the Supreme Court of Canada has sent a
tsunami wave through oil and natural gas, mining and
forestry industries in a ruling that gives First Nations
effective control over vast tracts of territory beyond the
confines of their defined traditional lands.
The 80-page decision applies specifically to drawn-out
litigation affecting about 660 square miles in British
Columbia’s central interior occupied by six communities
within the Tsilhqot’in Nation, but has the potential to
reshape resource development across Canada.
The unanimous judgment represents a major victory for
aboriginal groups, expanding their rights to claim
possession of ancestral lands as a result of a semi-nomadic
lifestyle and to control those lands permanently.
Chief J ustice Beverley McLachlin wrote that the rights
“conferred by aboriginal title means that governments and
others seeking to use the land must obtain the consent of
the aboriginal titleholders.”
The landmark ruling also provides a roadmap for all
unresolved land claims across Canada by First Nations
seeking to negotiate modern treaties, or to contest their land
rights in court.
“Aboriginal title confers the right to use and control the
land and to reap the benefits flowing from it,” McLachlin
wrote for all eight justices.
Other legal and regulatory observers said the ruling has
implications not just for future projects but for those to
have been approved or are under construction.
They note that one paragraph in the judgment might force
governments to retroactively cancel approval of a project if
it was given the go-ahead before aboriginal title was
established, while legislation enacted before title was
established might also be “rendered inapplicable.”
Supreme Court of Canada ruling
reactivates Okanagan Logging Case
by Wendy Stueck
Vancouver, 27 June 2014 – A court battle over logging
rights in B.C.’s Okanagan region could become one of the
first to reflect the impact of a landmark ruling on aboriginal
title from the Supreme Court of Canada.
The case, which had been put on hold pending the outcome
of a case involving the Tsilhquot’in Nation before the
Supreme Court of Canada, is expected to get back under
way, with a focus not only on land rights but whose laws
and systems should prevail.
The Okanagan case is now expected to follow. The case
began with a logging dispute but soon expanded into a
battle over rights and title, with the bands involved saying
they had the right to determine how to use the resources on
their land.
As the court case has dragged on, the disputed logging
“Despite B.C.’s rights admission and despite ongoing
litigation, the Secwepemc and Okanagan have been left
without a meaningful say or involvement in decisions that
impact their land base,” lawyers for the First Nation said in
a factum filed as part of the Tsilhqot’in case.
“B.C. has authorized large areas within the watersheds for
clear cutting. Since the Secwepemc Logging case was
stayed as a cost-saving measure, B.C. has authorized
logging of 56 per cent of the available timber in the Harper
Lake Watershed,” it said.
“In the logging cases, the laws of the Okanagan and
Secwepemc were relied upon – and they clash with the
laws of the province,” Louise Mandell, a lawyer who is
representing the Okanagan.
“It’s more of a toe-to-toe0 issue about authority and
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -25-
an informative <e-note> by fourarrows@rogers.com 6July 2014
“Aboriginals play the long game – but who wins?”
by Jeffrey Simpson
If you had a plugged nickel or several hundred millions of
dollars, among the worst places to invest that money would
be across the parts of British Columbia affected by last
week’s Supreme Court ruling.
It was difficult enough before to get the necessary
aboriginal agreement to
develop Crown land, or what
had been thought to be Crown
land. Now, those difficulties
have grown immensely with
the decision in the Tsilhqot’in
After the previous (and very vague) Delgamuukw ruling
(1997), it was thought that aboriginal title applied in areas
where groups had resided, and that their claims diminished
in strength the farther they got from those settled areas.
There was a kind of sliding scale of rights, from something
approximating a veto to the need for consultation. This was
how the B.C. Court of Appeal saw matters.
The Supreme Court, however, has ruled that title applies to
all the areas nomadic or semi-nomadic aboriginals moved
over before white settlement. “A culturally sensitive
approach suggests that regular use of territories for hunting,
fishing, trapping and foraging is ‘sufficient’ use to ground
aboriginal title,” the court said.
Which is another way of saying that aboriginals throughout
B.C. (and according to their immediate reaction, of
aboriginals across Canada) now have a veto over
development in any area over which they establish title.
Moreover, they have almost a veto over territory they
claim, even if the claim has not been found legally valid.
In B.C., it had been hoped that modern-day treaties would
reconcile the interests of aboriginals and the Crown. That
process, regrettably, has been a flop. Only a handful of
agreements have been reached.
Some aboriginal groups refused to enter any treaty
negotiations because they do not recognize Canada’s
sovereignty. Others lack the capacity to negotiate. Others
have become discouraged, perhaps feeling that the
government has not been committed, or perhaps feeling that
by waiting, the Supreme Court and other courts will do
much more for them than any government will.
Indeed, if the strategy is to wait on legal rulings, it’s proven
brilliantly wise. Aboriginals tend to play the long game,
and by playing it, they have seen their bargaining power
rise and rise again, courtesy of the courts.
This line of reasoning presumes that aboriginals do indeed
want to bargain – that is, negotiate agreements that would
permit development on what the court has now ruled is
“their” land, to be reconciled with the sovereignty of the
This approach does indeed exist. There are aboriginal
groups that do want to negotiate and are prepared to see
natural resource development, because where else will
wage-economy jobs come from?
The trouble is, however, that the hoops placed in front of
such development are now so numerous, and the process
for getting through them so lengthy and costly, that only the
most determined of investors will proceed.
This reticence will also apply to projects such as liquefied
natural gas, on which the B.C. government has bet some of
its economic future and a long-term balanced budget.
Then, of course, there are aboriginal groups that want no
development on “their” lands, period. They prefer the
traditional ways of living. Natural resource development
poses what they consider to be a mortal threat to these
ways. The legal strength they now enjoy gives powerful
tools to those who are determined to stop all development.
To take just one case, those groups that have been opposing
the Northern Gateway pipeline will rejoice in the
Tsilhqot’in ruling. If Northern Gateway wasn’t dead
before, it surely is now.
In the world economy, money (either private or
state-controlled) seeks places where returns are reasonable
and the local requirements for getting permission to
proceed are manageable. Many places around the world are
searching for these investments, because no one place has a
monopoly on resources.
If you were sitting in Beijing, Tokyo, New York or many
other places where companies make decisions about where
to invest, B.C. just dropped down the list. What foreigners
(and Canadians) will see or imagine the hassles to be will
cause many to turn away.
Maybe this is how British Columbians (aboriginal and
other) want the future to unfold. We shall see.
Unfortunately, neither Mr. Simpson’s editors nor Globe and
Mail proofreaders picked up on Mr. Simpson’s erroneous use of
“aboriginals” as a plural noun when at best, “aboriginal” is an
adjective. Mr. Simpson repeats the error 10 times in his article.
The Canadian Constitution speaks of “Aboriginal Peoples”,
correctly using the term.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -26-
an informative <e-note> by fourarrows@rogers.com 6July 2014
The Supreme Court’s
BC land-title decision?
It’s more important than you think
by Bob Rae
Some of the reactions to the Supreme Court’s decision in
the Tsilhqot'in First Nation case, which requires pipeline
projects and similar developments to seek aboriginal
approval, are so over the top they cannot go without
Nearly forty years ago a case from the Nisga'a community
known as Calder made a similar long journey through the
courts, and it was there that the Supreme Court (long before
the Charter) held that the arguments from both Ottawa and
British Columbia that no aboriginal title or claims survived
the arrival of European settlement was wrong.
The invasion and occupation of the Americas had been
seen by imperial powers as a conquest of empty land,
whose borders and boundaries were decided by any number
of treaties and agreements signed in Europe. In the
sixteenth century there was even a theological argument in
the Valladolid debate about whether aboriginals were
human. The doctrine of "terra nullius" was often invoked
to assert the legal fiction that these lands belonged to "no
one" before they were "discovered" by white people from
The Calder decision rightly blew those doctrines out of
the water, and urged governments, First Nations, and other
aboriginal peoples to sort out their relationships on the
basis of equality and respect. Since that time, in a variety
of ways, governments have made an effort to do this, but
it has been slow, halting, begrudging, and only rarely
From time to time the Court has had to weigh in, at each
juncture being careful, some might say judicious, to point
out that there is something called "the honour of the
Crown," that governments owe a fiduciary duty to
aboriginal peoples, and that they have a responsibility to
consult and accommodate.
Centuries before Calder, governments often signed treaties,
with a variety of motives. The French and English signed
"peace and friendship" treaties as a way of ensuring
military loyalty. The so-called numbered treaties were more
or less imposed between 1875 and 1925 to ensure the land
was cleared. Two recent books, J ames Daschuk's Clearing
the Plains and J ohn Long's Treaty 9, raise important issues
about the moral and legal foundation of these agreements,
and their implications for the modern world.
More recently, some groundbreaking modern treaties have
been negotiated and signed – in Quebec, Labrador,
Nunavut, Northwest Territories and British Columbia – in
which more equal and positive relationships have been
established with shared powers, revenue distribution, and
massive land claims that have recognised aboriginal
jurisdiction over large portions of their traditional lands.
They have altered the political and economic landscape to
better recognise the fact that First Nation and aboriginal
governments are real, and have a jurisdiction that needs
recognition in fact and in law.
But the Court hardly gave the store away. They pointed out
that the land has been under the effective control of the
Tsihlqot'in all along. Their title is of a collective nature,
and exists for perpetuity. Other governments have a stake
too, and can override title, but only in a clearly defined and
limited way and for purposes that have been given greater
clarity by the Court.
And in an important statement, the Court said, in
paragraph 97 of the decision, that government and
businesses worried about an assertion of aboriginal title
would be well-advised to seek the consent of the First
Nations and aboriginal governments before proceeding
with development plans.
The policy path is clear. Aboriginal people and their
political entities have a valuable part to play in the
federation as governments alongside provincial and federal
governments. This was agreed to by first ministers in the
1992 Charlottetown Accord. Peoples that have been
Bob Rae was Premier of Ontario 1990-1995, a federal Member
of Parliament 2008-2013 and leader of the federal Liberal Party
“The policy path is clear. Aboriginal people
and their political entities have a valuable part
to play in the federation as governments
alongside provincial and federal governments.
“This was agreed to by first ministers in the
1992 Charlottetown Accord.
“Peoples that have been systematically abused,
ignored, and sidelined by development, now
have a right to jurisdiction over their lands
based on history and facts on the ground.
– Bob Rae on Tsilhqot’in
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -27-
an informative <e-note> by fourarrows@rogers.com 6July 2014
systematically abused, ignored, and sidelined by
development, now have a right to jurisdiction over their
lands based on history and facts on the ground.
These governments should have the right to decide how
they will be used and to share in the benefits that flow
from that, as well as the right to be consulted, involved,
accommodated, and indeed compensated if they are to
be expected to agree to development. Some projects
won't happen, but most will. The result will be to begin
the end of an aboriginal poverty that is a stain on our
This process is in fact a win for all Canadians, because
it allows us to finally embrace our broader identity, not
as conquerors or oppressors, but as a people struggling
to become whole. It's the nation building that remains
to be done.
Of course arguments will continue, because things have
been done in the name of development that have been truly
destructive. Flooding of vast swathes of land without
recognition of both the environmental degradation and the
economic costs, mines that have never been properly
cleaned up, the pollution of rivers and lakes that has never
been paid for: the list goes on. There are still days of
reckoning ahead. Will this cost government treasuries?
Yes, indeed, but these are bills that must be paid.
Those who complain that the courts are not good places
to resolve these issues should look in the mirror and ask
themselves what they have really done to allow them
their speedy and just resolution in another way.
Governments have hemmed and hawed, opposed and
delayed, and only come to the table when all other
opportunities were exhausted. They are running out of
excuses. Which is a good thing.
Taseko Mines Limited Remains in Denial
After Supreme Court Tsilhqot’in Decision
Williams Lake, BC, 2 July 2014 – Amidst the celebrating
and joy in the strength of the people, culture and traditions,
the Tsilhqot’in National Government found itself dealing
with which the Tsilhqot’in people felt was continuing lack
of respect from Taseko Mines Limited of Vancouver about
Aboriginal rights and title.
The ink had not yet dried on the decision whtn Taseko
issued a media statement, thanking the Supreme Court for
“significantly resolving aboriginal title complication by
removing any doubt about aboriginal title in the area.”
Tsilhqot’in Nation’s court case was about a specific portion
of its territory. It was not about its entire territory. But
Taseko is saying that because its mine is not within the area
dealt with by the Supreme Court, “the mine is the only
proposed mine in BC that people know for sure is not in an
area of aboriginal title.
"Now that these matters have been settled, the opportunity
exists for a constructive and mutually beneficial way
forward for the New Prosperity Project. We welcome and
look forward to the opportunity to re-establish a positive
dialogue with the six Tsilhqot'in bands represented by the
Tsilhqot'in National Government, about New Prosperity
and its potential to assist them with advancing community
priorities," said Russell Hallbauer, Taseko president. .
Chief J oe Alphonse, Tribal Chairman of the Tsilhqot’in
Nation, shot back: “It’s time Taseko finally started showing
respect for our people. The project has been rejected twice
because of the serious negative impacts that two
independent panels have found. It is arrogant to still
attempt to push this project through. Prosperity Mine is a
dead issue. I would suggest they make significant
changes to their company’s leadership if they ever
want to see progress on any other project.”
Taseko Mines has filed for two judicial reviews of
the federal decision, challenging the process and the
information on which the government based its
decision. Those processes remain underway.
Chilcotin River
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -28-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Adversarial approach with
Tsilqhot'in wrongheaded
by Will Braun
There were surely no high-fives in the Prime Minister’s
Office when the Supreme Court issued its landmark
decision on aboriginal title. The Prime Minister didn't don a
traditional head-dress as he did at a 2011 ceremony in
Alberta or stand along side aboriginal elders as he did in
2008 when he apologized for residential schools abuses.
In this supposed era of reconciliation, the federal
government sent lawyers to court to line up against the
Tsilqhot'in people. If Ottawa had its way, the court would
have denied the Tsilqhot'in title to their traditional lands,
sent them back to court and entrenched the status quo.
Why did the feds fight the case? And is their vision of
Canada built on fighting every other First Nation that
follows the Tsilqhot'in lead?
Government lawyers – who first opposed the Tsilqhot'in
claim to title in 1983 when the case began – argued the
Tsilqhot'in have rights to hunt and fish in the 1,750-sq km
area of B.C. in question but should not be granted title to it.
Title would essentially convert the area from Crown land to
land owned collectively by the Tsilqhot'in.
Federal lawyers argued that use of the area in question
should be determined through negotiations. They argued
the claim for title was flawed and the Tsilqhot'in could
come back to court for a "properly pleaded" case about title
to specific sites rather than a large tract of land. Presumably
Ottawa would have fought that case as well.
The resulting win for aboriginal people was taken as a loss
by the federal Conservatives. That is unfortunate. The
government could have said Canada is a huge nation of
tremendous opportunity and this opportunity should be
shared generously with aboriginal people. It could have
said that without a land base, aboriginal people will be
doomed to live in a state of poverty and dependence that
constitutes a national shame.
Instead of forcing a gruelling legal battle, it could have
collaborated in a process of determining the area to which
aboriginal title was justified and supporting appropriate
Such a process would set a precedent that would have to be
followed elsewhere. Clearly, the prospect would make
government, and many Canadians, nervous.
Understandably so.
Land title remains undetermined or questionable in most of
B.C., roughly 40% of Quebec, points east of Quebec and
possibly the 2/3 of Northern Ontario covered by the
dubious J ames Bay Treaty. The ruling may also bolster
calls for revenue sharing from First Nations that have
signed treaties. As one aboriginal leader noted, "a rising
tide carries all boats."
All of this would come at a cost. It would create a
monumental jostle for land rights and ultimately it would
mean some resource-development projects would not
happen or would happen on a less ambitious scale than they
might have otherwise.
But the failure to grant aboriginal peoples the dignity and
opportunity of a land base also comes at a tremendous cost
– economic, social and moral. It is the cost of an entirely
unacceptable status quo.
Change is required. That change can come through
arduous, adversarial court battles or through a more
cooperative nation-building process.
Aboriginal rights are complicated and often poorly
understood by Canadians, but behind the intricate issues of
rights, title and treaties is the essential notion of sharing.
The 147-year-old arrangement known as Canada has
worked better for non-aboriginal people than aboriginal.
Those of us on the settler side have not shared well. We
need to learn to share.
Sure, we may have to give up some things along the way --
though nothing as drastic as some people predict – but in
the process aboriginal people would gain a measure of
dignity and self-reliance, and the rest of us would gain a
measure of honour, and perhaps a somewhat eased national
We are all neighbours. We dwell in a land of exceptional
abundance. There is plenty to go around. As non-aboriginal
people we need not fear and we need not fight. We made
the unthinkable mistake of taking First Nations' children;
maybe we should let them have a land base.
But the failure to grant aboriginal peoples
the dignity and opportunity of a land base
also comes at a tremendous cost –
economic, social and moral.
It is the cost of an entirely unacceptable
status quo. Change is required.
That change can come through arduous,
adversarial court battles or through a more
cooperative nation-building process.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -29-
an informative <e-note> by fourarrows@rogers.com 6July 2014
by Thomas Walkom
Supreme Court ruling puts First Nations
in driver’s seat on pipelines
When Canada's Supreme Court released its sweeping
judgment on aboriginal rights last Thursday, pipeline
opponents were jubilant.
"There is no blank cheque for the Northern Gateway
project," Council of Canadians chair Maude Barlow said,
referring to a proposed Enbridge pipeline that would bring
oil from Alberta's oilsands to the British Columbia coast.
Grand Chief Stewart Phillip of the B.C. Union of Chiefs
predicted the decision would affect Kinder Morgan's
scheme to expand its Trans Mountain pipeline system,
which moves oil across the Rockies to Vancouver.
Others said the ruling could scupper TransCanada Corp.'s
plan to build the so-called Energy East pipeline from
Alberta to New Brunswick.
But the unanimous court decision is a subtle one.
First, it doesn't exclude aboriginal lands from
provincial laws. Provinces are free to make laws about
matters such as oil drilling and forestry. But these laws
must be applied to lands under aboriginal title in a
manner that protects native rights.
For instance, provincial governments can't unilaterally
let forest companies clear-cut native-owned land.
Second, the decision does not give First Nations a veto
over government-authorized projects that affect their
lands. In fact, the eight justices ruled that for purposes of
"building up infrastructure" or "general economic
development," federal and provincial governments can
override the wishes of First Nations — even those that
possess clear aboriginal title to their territory through
treaties or court decisions.
But governments can do so only if they adhere to three
First, they have to consult with the First Nation in a
meaningful way, in an effort to win its consent.
Second, they must have a "compelling and substantial
public purpose" for overriding a First Nation if that
consent is not obtained.
Third, they must maintain their constitutional duty to
protect First Nations. In particular, they must act in a
manner that protects aboriginal territory for future
In areas where First Nations have not obtained clear
aboriginal title (and that involves most of B.C., as well as a
big chunk of land — including Ottawa — in eastern
Ontario), governments have more leeway for action. All
they must do is consult seriously.
But the court ruled that even here, governments must be
careful. If, for instance, Ottawa approves a project in an
area that later is determined to come under aboriginal title,
the project may have to be dismantled.
Potential pipeline investors might want to keep that
particular part of the ruling in mind.
What does this all mean in practice?
The experts are divided. Indeed, some business groups have
welcomed the decision, saying it clarifies the meaning of
aboriginal title — which is true. But what also seems to be
true is that First Nations are now in the driver's seat when it
comes to any economic development involving lands that
are already aboriginal or could plausibly be labelled as such
in the future. That's a big chunk of the country, particularly
in the resource-rich north.
The Tsilhqot’in decision makes clear that none of this can
happen easily unless First Nations are willing.
This doesn't mean that Canada's pipeline projects are dead.
But it does mean that those who want them — including
governments — are going to have to spend a lot more time
and money wooing aboriginal people.
For Prime Minister Stephen Harper's Conservatives, who
have taken a tough-love approach to First Nation issues,
this would be quite a switch.
First Nations are now in the driver's seat
when it comes to any economic development
involving lands that are already aboriginal or
could plausibly be labelled as such in the
All three major parties in Ottawa are focusing
on the resource economy as Canada's engine
of growth.
The Tsilhqot’in decision makes clear that none
of this can happen easily unless First Nations
are willing.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -30-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Another View: Life after
the Tsilhqot-in decision
by Tom Fletcher
Victoria, 2 July 2014: The Supreme Court of Canada’s
landmark decision on aboriginal title held by the
Tsilhqot’in Nation leaves many questions to be answered.
Perhaps the biggest is this: will British Columbia exist as
we know it today by the end of this century?
Or will it devolve into dozens of semi-autonomous regions,
through treaties or similar court actions, as the only
Canadian province that never completed historic treaties?
The Tsilhqot’in decision appears to uphold the key finding
of the 2007 trial, that 1,700 sq km of the Nemiah Valley
west of Williams Lake are essentially owned by the people
who occupied it hundreds if not thousands of years ago.
It’s not quite ownership. Federal and provincial jurisdiction
still applies, and their authority varies with the strength of
the aboriginal title claim.
Chief J ustice Beverley McLachlin ruled that the province
overstepped its authority by issuing logging permits in the
valley in 1983. She noted that lawyers for B.C. first argued
that the logging was to control mountain pine beetle, then
dropped that argument in its first appeal.
She also upheld the decision of the trial judge who rejected
B.C.’s position that the economic value of the timber to the
province overrode the then-vaguely defined aboriginal title.
Here’s Chief J ustice McLachlin’s definition:
“The nature of aboriginal title is that it confers on the
group that holds it the exclusive right to decide how land
is used and the right to benefit from those uses, subject
to the restriction that the uses must be consistent with
the group nature of the interest and the enjoyment of the
land by future generations.”
That’s not land ownership in the fee-simple sense of the
term. It locks in communal ownership, which I and many
others have argued is at the root of the poverty seen in
many aboriginal communities.
Another big question: Is there any future for B.C.’s
20-year-old treaty process, or will this precedent-setting
case send more First Nations to court, or to the barricades
as the Tsilhqot’in did on a logging road in 1983?
One of the unique advantages that have emerged from the
handful of modern treaties in B.C. is that aboriginal
communities have more options in land ownership.
By voluntary agreement, they can convert land to
fee-simple ownership, making it available for mortgage or
Modern treaty holders also get out from under the federal
Indian Act, which remains in force despite this latest
One of the big questions asked in the days after the
Tsilhqot’in decision was this: Is the Northern Gateway
pipeline project dead?
None of the aboriginal communities along the pipeline
route has this kind of declared aboriginal title. Few if any
would have a similar strength of claim as the Tsilhqot’in,
who fought a small war to defend their territory from a
wave of gold seekers in the 1860s.
One that does is the Haida Nation, whose occupation of a
beautiful group of islands was long defended militarily, and
never challenged by any other aboriginal group.
Among others, the Haida Nation was represented in the
Tsilhqot’in case as interveners. Council of the Haida
Nation president Peter Lantin said after the decision that
his team is preparing its own aboriginal title case for trial.
Few doubt that this assertion of title will be successful,
either by negotiation or court ruling. But there is a unique
aspect to the Haida claim that would set another precedent.
They claim title to the ocean around Haida Gwaii, a
challenge to anyone wishing to sail tankers through.
Tom Fletcher is legislature reporter and columnist for Black
“The nature of aboriginal title is that
it confers on the group that holds it
the exclusive right to decide
how land is used and
the right to benefit from those uses,
subject to the restriction that
the uses must be consistent
with the group nature of the interest
and the enjoyment of the land
by future generations.”
Tsilhqot’in Decision, 2014
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -31-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Editorial by John Cumming
In Tsilhqot'in decision, 'duty to consult'
becomes 'requirement for consent'
As everyone involved in natural resource extraction in B.C.
is now well aware, the J une 26 decision by the Supreme
Court of Canada declaring that the small Tsilhqot’in First
Nation holds aboriginal title over 1,750 sq. km in central
B.C. is a precedent-setter that effectively remakes the
regulatory environment in B.C., and has ramifications
across Canada where aboriginal land claims are unsettled.
In the case of Tsilhqot’in Nation v. British Columbia, the
vast, sparsely populated stretch of land in question west of
Williams Lake is no longer Crown land but title land held
communally by the Tsilhqot’in First Nation, which has the
right to exclusive use and occupation of the land, and the
right to its economic benefits.
For the first time, the decision clarifies how a nomadic or
semi-nomadic aboriginal group such as the Tsilhqot’in can
establish title to land they occupied before contact with
Western colonialists and continue to use to the present day
– or "sufficient, continuous and exclusive occupation" in
the parlance of the court.
But determining the geographical boundaries of title land is
by no means a quick process: just the trial portion of this
25-year-long legal process lasted 339 days in court,
spanning almost five years.
As many commentators have correctly pointed out, this
Supreme Court decision means that the old regulatory era
of provincial and federal governments only having a vague
"duty to consult" aboriginal groups with respect to
development on "traditional land" has been replaced with a
"requirement for consent" by the governments from an
aboriginal group when it comes to "title land."
And make no mistake: this decision relates to who controls
and benefits from the economic development of land, and is
not a more narrow question of aboriginal rights with
respect to fishing or hunting, etc.
Equally significant, this decision also means any economic
development of the communal title land must not restrict
future generations of Tsilhqot’in from benefiting from the
land. Further, the Crown now has only a limited ability in
situations of "compelling and substantial public purpose" to
authorize economic development on title land without the
First Nation’s consent. In today’s Canada, it’s hard to think
of a scenario short of mobilization for war or major
environmental devastation that would warrant such an
override of First Nation consent.
The reaction of the provincial mining associations to the
Tsilhqot’in decision was cautious, and the wording of their
official statements still reflexively returned to the
now-outdated "duty to consult" phraseology.
The Mining Association of B.C. said it is "reviewing the
decision" but that it "provides certainty and clarification
around aboriginal title and the application of provincial law
and regulation on the land base."
The Association for Mineral Exploration B.C. stated that it
is "a complex and precedent-setting case that will require
further review," and that "we at AME BC know that the
path forward is for the federal and provincial governments
to continue consulting with the Tsilhqot’in Nation."
For now, no one knows exactly what mineral deposits,
proposed mine developments and operating mines in B.C.
coincide with – or will someday coincide with – what
aboriginal title claims, and this uncertainty can only be
resolved on a case-by-case basis over many years.
For First Nation groups living on non-treaty lands in B.C.,
there’s now every incentive to push hard to obtain title over
land where they have had "sufficient, continuous and
exclusive" occupation since before European sovereignty.
In the meantime, it’s sure to put a chill on new investment
in mineral exploration and mine development in the
province, and in other regions of Canada where treaties are
not in place with aboriginal groups, and aboriginal title
claims are strong.
© 1915 - 2014 The Northern Miner. All Rights Reserved.
The old regulatory era of provincial and
federal governments only having a vague
"duty to consult" aboriginal groups with
respect to development on "traditional land"
has been replaced with a "requirement for
consent" by the governments from an
aboriginal group when it comes to "title land."
And make no mistake: this decision relates to
who controls and benefits from the economic
development of land, and is not a more narrow
question of aboriginal rights with respect to
fishing or hunting, etc.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -32-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Maybe now First Nations
have country's attention
Aboriginal participation in resource development
on their traditional lands is now a right
By Ken Coates
The Tsilhqot'in decision issued last week by the Supreme
Court of Canada is an absolute game-changer. With
unexpected clarity and decisiveness, the Supreme Court
recognized the Tsilhqot'in's Aboriginal title to their
traditional lands and directed governments on how they
must proceed with any future development on non-treaty
lands. Even the Tsilqot'in, who clearly hoped for the best
from the courts, seemed gobsmacked by the strength of the
judgment in their favour.
This decision is a long time coming. In 1973, the Nisga'a
from the Nass River valley in northwest British Columbia
had their day in court. They claimed Aboriginal title to
their traditional territories and wanted their land rights
recognized by the courts. The Nisga'a lost the case, in a rare
3-3-1 split vote, but they had made their point.
Prime Minister Pierre Trudeau, previously unimpressed
with Aboriginal claims, realized that the Government of
Canada could well lose the next such legal challenge. The
modern land claims era had started.
But it has been a hard road. Some land claims agreements
were signed, particularly in the Yukon, Northwest
Territories and Nunavut, and the Nisga'a finally got their
settlement. But most of British Columbia remains
non-treaty land, and several Yukon and NWT First Nations
and Maritime First Nations have not yet signed land
surrender treaties. Even without full legal backing, many
First Nations - more than most Canadians realize - worked
with governments and corporations to secure appropriate
resource development agreements.
Others, including the Tsilhqot'in, pushed back and used the
courts to clarify their rights and responsibilities. The
Supreme Court decision on the William case is the capstone
to that process.
There will be a great deal of talk about the Tsilhqot'in
decision in the next few weeks and months. The Tsilhqot'in
won, and they won big. Their Aboriginal rights to their
traditional territories have been confirmed. The basis for
negotiations in British Columbia and elsewhere has shifted.
First Nations have more legal authority than in the past and,
like anyone else in a similar situation, they will use it to
their benefit.
The Aboriginal power as spelled out in the William
judgment is not absolute, however. Resource development
can proceed, subject to the restated requirements to consult
and accommodate. The decision puts a higher standard on
Government to demonstrate a compelling provincial or
national interest in a specific project - and no doubt
governments and First Nations will be back in court to
define the collective interest more precisely.
To this point, most Canadians have viewed First Nations'
interests in resource development as a minor irritant and
occasionally, as with the Northern Gateway project, a
major impediment. Indeed, there has been growing concern
expressed by non-Aboriginal people about the steady
increase in Aboriginal rights, a grumble that is likely to get
louder in the days to come. However, there are more
important lessons here.
That the Tsilhqot'in turned to the courts showed their
ultimate faith in Canada and their commitment to a
peaceful resolution to their outstanding claims. The
Supreme Court has vindicated that confidence.
Remember, however, that this decision recognizes
Aboriginal rights under British and Canadian law. It applies
a British legal standard to the First Nations' claim. It does
not represent an assertion of Indigenous legal or political
concepts, much as the Tsilhqot'in would have liked that.
In short form, the Supreme Court has declared that, in order
to honour British and Canadian law, governments have to
work differently and more proactively with First Nations.
Importantly, the William decision compels governments
and companies to work in a way that in fact has already
become accepted practice. Resource companies realize that
they need to work with Aboriginal people if they want their
projects to succeed and they have become increasingly
adept at creating viable partnerships and collaborations.
Governments, too, understand that the resource
development world has been changing rapidly in recent
years and that new arrangements are required.
Canadians have to realize, through this decision, that the
country has turned a page in its history. Aboriginal people
have been assured, under British and Canadian law, a
proper and substantial place in the development of natural
resources. Their participation is a matter of right, not
corporate generosity or government benevolence.
Ken Coates is Canada Research Chair in regional innovation at
the J ohnson-Shoyama Graduate School of Public Policy in
Saskatchewan, and a senior fellow at the Macdonald-Laurier
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -33-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Q&A: How the Tsilqot’in Might Affect You
By Rob Shaw rshaw@vancouversun.com, Vancouver Sun
A historic Supreme Court of Canada decision on the land
title rights of the Tsilhqot’in First Nation has left aboriginal
leaders, governments and legal experts analyzing the
ramifications of what some have called the most important
court ruling on First Nations land rights in the province’s
history. Here are some questions and answers about the
court decision:
Q: What does this mean for houses or businesses that
are on land that might be part of future First Nations
land claims?
A: “This decision has no effect on private property rights,”
said Dominique Nouvet, an aboriginal lawyer at Woodward
& Company in Victoria that acted on behalf of the
Tsilhqot’in at the Supreme Court. The few homes and
business in the lands near Alexis Creek that the Tsilhqot’in
won title over were deliberately excluded from the court
case. The high court didn’t specifically address the issue,
but it may form part of future rulings for land title claims in
urban areas.
“Whether it would trump private land interests is a question
we don’t know the answer to,” said Rosanne Kyle, a
Vancouver lawyer who practices aboriginal and
environmental law. Regardless, courts have vast discretion
to impose “remedies” on rulings, so that a judge could limit
the impact of land title claims on private landowners, or
order compensation.
Q: What does the court ruling mean for the treaty
process between First Nations and the provincial and
federal governments?
A: Experts are split on the issue, with some saying it will
jump-start the slow-moving and often-criticized treaty
process, while others admitting there’s the potential First
Nations could sidestep that log-jammed process in favour
of land title claims.
Treaties provide much more certainty over self-governance,
legal issues and on-the-ground management than a land title
claim, said Thomas Isaac, who leads the aboriginal law
group for law firm Osler, Hoskin & Harcourt LLP and is a
former chief treaty negotiator for the B.C. government.
“The good thing about a treaty is that you know what
you’ve signed for all parties involved,” he said. “It’s not
actually clear what aboriginal title will translate into, at
least on Day 1. . . . That means much of B.C.’s Crown land
is “in play” for First Nations that want to pursue title
claims.” Nothing changes immediately, he said, and for
anything to happen on the land, first an aboriginal group
has to win a title claim or sign a treaty. ”
Other say the Supreme Court decision is the latest in
several court rulings that clearly tell the B.C. and federal
governments to do a better job of treaty negotiations and
reconciliation. “It would be a complete travesty if
government forced every First Nation to fight this out in the
court,” said Nouvet. “It’s a waste of everybody’s money.”
Q: How does all of this affect Crown land owned by the
government on behalf of the B.C. public?
A: “The court reconfirmed an existing principle that has
been established some time ago, that aboriginal title
predates Crown title,” said David Bursey, who leads the
aboriginal law group in the firm Bull Housser. The
implications of this decision are dramatic and will affect
land and resource development throughout the province. . .
British Columbia must be very thoughtful in its reaction to
this, and whatever its answer is it has to be sustainable over
the long term,” said Bursey. “The issue isn’t going away
and there won’t be a quick fix to this.”
B.C. is now limited in what action it can take on Crown
land — whether logging, mining or other resource
extraction — when that land is subject to a strong title
claim by a nearby First Nation, Nouvet said. The stronger
the claim, the more consultation and accommodation is
required by government, the court ruled. “If a First Nation
has a strong aboriginal title claim and the government is
contemplating approving a mine that would wreck an area,
I would say under this decision that is not allowed,” said
Q: What about Crown land already being used for a
purpose? Or even a provincial park?
A: There’s nothing stopping a First Nation from claiming
title over Crown land currently being used, or over a park.
“In theory parks are up for grabs in an aboriginal title
claim,” said Nouvet. “The First Nation, if it wins, would
get to decide how they want to use the land, and the First
Nation would not be confined to keeping it as a park.”
But the high court also reconfirmed that there are some
land uses that are so important to the larger public good —
such as power generation and environmental protection –
that a government can justifiably infringe upon an
aboriginal claim and force a project, if it follows the right
process, including engagement and accommodation. The
court ruled B.C. laws generally apply to land under
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -34-
an informative <e-note> by fourarrows@rogers.com 6July 2014
aboriginal title, but some things, like timber, are now the
property of the First Nation. oing forward, the government
will have to consult with First Nations before renewing
logging or other leases on Crown land that could be
subject to a claim, said Nouvet.
Q: If a First Nation has already signed off on using
land for a project, can it come back and cancel that
project after winning land title?
A: It was specifically addressed by the court, but generally
legal experts believe if a First Nation has already given
informed consent to a project, such as a mine or pipeline,
then that’s binding. However, the Supreme Court also said
governments may have to revisit approvals for activities
they have already allowed on land if there wasn’t
sufficient accommodation to the First Nation before it won
Chiefs of Ontario Applaud Tsilhqot’in Ruling
Thanks to Kathryn Blaze Carlson, Globe and Mail
Thunder Bay, Ontario, 27 June 2014 – Ontario Regional
Chief Stan Beardy predicts the Tsilhqot’in ruling will have
implications for major projects such as the Ring of Fire
and two pipelines.
“We are optimistic that this will have a positive impact on
the Keewatin case,” he said, referring to another case
which has been heard by the Supreme Court of Canada
which is now considering its decision. That case deals with
a challenge to Ontario’s right to permit industrial logging
on Grassy Narrows First Nation traditional lands.
Bob Rae, negotiator for First Nations involved in the
massive Ring of Fire mining project, says the Treaty 9
First Nations he represents view the Treaty as an
agreement to share their land with the Crown, not
surrender it. “We fully expect the governments of Ontario
and Canada to respect the spirit and broader meaning of
the Treaty,” he said in a call from the remote community
of Neskantaga in the Matawa area.
The Tsilhqot’in ruling is that if there was not a surrender
by Treaty, governments and companies must obtain
consent from aboriginal title holders for use of the land/
Even where a court or government has not recognized title,
there must be consultation and where appropriate
accommodation of aboriginal and treaty rights.

A Note From Noel Lyon
Once Again: The Old Rules Renounced
What a great day it was when the William judgment
came down! I read the whole thing once it was on
the internet and found it hard to believe that this is
the same court that once joined in on the general
denial that the savages could even be worthy of a
It's a fine piece of legal reasoning in the context
of history as it actually happened. I think the
part that will be difficult or impossible for the
longtime deniers to grasp is that the land
claimed is no longer Crown land. The imperial
brainwashing was so complete that these poor
devils can only shake their heads in disbelief.
Not only is it a great day for the Court but an
even greater day for those who fought the good
fight over decades, whose courage and
determination have finally prevailed. Many of
them did not live to savour their amazing
I think of all those who endured persecution for
asserting their fundamental rights and those
who took their claims through the courts against
what looked like impossible odds.
Now those in power, who must take remedial
action, can if they choose learn much about
truth, respect and serious diplomacy from the
peoples they have dismissed and denied for so
– Noel Lyon, Kanata Day 2014
Noel Lyon is professor emeritus, College of Law, Queen’s
University, with over 50 years of advocacy for justice for
indigenous peoples. The Supreme Court of Canada quotes
him in Sparrow: “. . . s. 35 is not just a codification of the
case law on aboriginal rights that had accumulated by 1982.
S. 35 calls for a just settlement for aboriginal peoples. It
renounces the old rules of the game under which the Crown
established courts of law and denied those courts the authority
to question sovereign claims made by the Crown.”
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -35-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Title decision validates the Work
of Justice David Vickers
by Les Leyne lleyne@timescolonist.com / Times Colonist
Pat Vickers’ daughter phoned her at 6:30 Thursday
morning and told her to turn on the TV. She did, and they
both started crying.
They were watching the beginning of hours of coverage of
the Supreme Court of Canada decision on what the words
“aboriginal title” mean. It had special resonance for them,
because it was clear from the start that the judgment
amounts to a vindication for Vickers’ late husband, David.
He was the B.C. Supreme Court judge who immersed
himself in the Tsilhqot’in Nation’s claim for ownership of
a remote chunk of Chilcotin wilderness. (It’s wilderness
because about 100 native people blocked the loggers more
than 20 years ago, which started the case.)
After delving exhaustively into every aspect of the
aboriginal existence and history in the region, he decided
the Tsilhqot’in had proven rights to much of the Nemiah
Valley and those rights were being violated by government
logging plans.
The decision stopped short of granting title outright
because of a technicality relating to the “all or nothing”
approach from the plaintiffs. But his 458-page judgment in
2007 joined the list of momentous aboriginal title
decisions. It was appealed for various reasons and five
years later the B.C. Court of Appeals scaled back the
import of the ruling.
The case progressed from there to the Supreme Court of
Canada last winter. Thursday’s decision was the word
from on high about the case. And the word is mostly a
broad endorsement of Vickers’ interpretation of the case.
“The trial judge was correct,” the high court said. “Absent
demonstrated error, his findings should not be disturbed.”
It was good news for First Nations, but they were also
sweet words for the Vickers family to hear. “We are just
over the moon,” Pat Vickers said. “Delighted.”
She recalled the phenomenal amount of work he put into
the case. It arrived in his Victoria courtroom in 2002 and
proceeded over 339 days during the next five years. It cost
a staggering amount of money, at least $30 million, all of it
funded by governments. Vickers moved proceedings up to
the Chilcotin for several weeks early on to get a feel for
the territory and hear testimony from elders. Some
witnesses spoke in their original language, so translators
were brought in.
Pat accompanied him and the two would go for walks
during breaks. She recalled meeting children who were
fascinated by all the buttons on the vest he wore under his
judicial robes.
When arguments finally concluded, Vickers was desperate
to get the job done, Pat recalled. So he sat down and
reviewed tens of thousands of pages of testimony and
wrote his judgment in a period of several months, much
faster than it would normally take.
“This is not a usual judgment but, rather, part of a larger
process of reconciliation between Tsilhqot’in people and
the broader Canadian society,” he noted in the verdict. “I
have departed from the usual practice and expressed my
views on some issues that might not have been addressed
but for the nature of these proceedings.”
He invited the parties to use the opinion “in the
negotiations that must follow.” Note “must.” One of the
thrusts of the decision, like others before, is that
negotiations and compromises are the only way forward
through the aboriginal title issue.
“My hope is that this judgment will shine new light on
the path of reconciliation that lies ahead.”
Even the appeal court judge who reversed some of his
findings paid tribute to the work he put into the case. “One
is struck … by the incredible patience and conscientious-
ness shown by the trial judge,” said the judge. “It’s a
tribute to [Vickers’] diligence and intellect that this case
presents a suitable opportunity for this court to address the
The Vickers decision is at Tsilhqot'in Nation v. British
Columbia, 2007 BCSC 1700 (CanLII) http://canlii.ca/t/1whct ,
Pat and Justice David Vickers, Camosun Foundation Award
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -36-
an informative <e-note> by fourarrows@rogers.com 6July 2014
complex issues that go to the heart of aboriginal title.”
Vickers retired soon after delivering his opus, and Pat
recalled him half-jokingly predict that he’d probably be
gone by the time it made its way to the Supreme Court. He
died at age 75, two years after rendering the verdict of his
But Pat Vickers assured me: “David’s spirit is soaring all
over the place today.”
Professor Kent McNeil of Osgoode Hall Law School
explains the contribution of Justice David Vickers
J ustice Vickers’ explanation for providing a lengthy obiter
opinion on title is revealing. He devoted 18 pages of his
judgment to reconciliation, admitting that, in the
adversarial milieu of the courtroom, judges are “ill
equipped to effect a reconciliation of competing interests.”
Reconciliation, he observed, must be achieved in “a treaty
negotiation process.”
What, then, is the role of the courts? J ustice Vickers
apparently thought that his factual findings and
non-binding legal conclusions would induce the parties to
bargain in good faith and reach reasonable
He clearly regarded the positions of B.C. and Canada on
aboriginal title as the major obstacle to honourable
negotiations. He said their “postage stamp” approach could
not “be allowed to pervade and inhibit genuine
negotiations.” He also blamed “governments at all levels,
for successive generations,” for having “failed in the
discharge of their constitutional obligations.” These
failures included B.C.’s wrongful denial of aboriginal land
rights, and Canada’s refusal to accept its constitutional
responsibilities and negotiate treaties in B.C.
The constitutional problem stemmed from the province’s
assumption from the time it joined Canada in 1871 to the
1990s that no aboriginal title existed in B.C., and so all
unpatented lands that were not federal belonged to the
province. Not so, said J ustice Vickers, as Delgamuukw
decided that aboriginal title is proprietary and includes
exclusive rights of occupation and use. \
Moreover, aboriginal title lands are under exclusive federal
jurisdiction as “Lands reserved for the Indians” (s.91(24)
of the Constitution Act, 1867). So, besides lacking a
present beneficial interest, the province has not had
jurisdiction over these lands since 1871.
Relying again on Delgamuukw and the division-of-powers,
J ustice Vickers concluded that B.C. could not extinguish
aboriginal title by granting interests to third parties.
Although he avoided any conclusions on the effect of these
grants, it follows from his analysis that grants of interests
inconsistent with aboriginal title would be invalid. This
means that these grantees would have entered as
trespassers. Also, the grantees would not be able to rely on
provincial statutes of limitation because, as he observed,
those statutes would not apply for the same
division-of-powers reasons.
No wonder J ustice Vickers has thrown this controversy
back to the governments that created it! But how might
aboriginal title and inconsistent private property interests
be reconciled in treaty negotiations? I believe this would
involve seeking a middle road toward reconciliation and
avoiding one-sided approaches that would, as J ustice
Vickers pointed out, “run the risk of rubbing salt into open
The first issue is that provincial fee simple grants of
aboriginal title land could not have extinguished aboriginal
title and should have been void. But what if the grantees
entered believing they had good title, made substantial
improvements, and have remained in peaceful possession
ever since?
Arguably, dispossessing them today would replace one
injustice with another. The aboriginal titleholders are
nonetheless entitled to a remedy for the wrongful taking of
their lands. Since it would be unjust in the circumstances
to return the lands themselves, the real wrongdoers –
Canada and B.C. – should provide replacement lands or
monetary payments as compensation.
In other instances, the province has wrongfully granted
interests less than fee simple estates, such as mining and
lumbering interests, in aboriginal title lands. Where
resource extraction has terminated and these interests have
expired, it would be appropriate for the wrongdoers –
again, Canada and B.C. – to compensate the aboriginal
titleholders for the value of the resources (which,
according to Delgamuukw, belonged to the aboriginal
titleholders), and for the damage done to their lands.
In situations where provincially authorized mining,
forestry, etc. are continuing on aboriginal title land,
Canada and B.C. should pay compensation for the value of
the resources taken and the damage already done. But
these activities should not continue without the consent of
the aboriginal titleholders, who, as determined in
Delgamuukw, have the right to manage their lands and
make decisions about the uses to which they are put. As
J ustice Vickers’ obituary appears at
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -37-
an informative <e-note> by fourarrows@rogers.com 6July 2014
these management rights are on-going, future resource
extraction should be subject to aboriginal control.
Moreover, a share of the benefits should go to the
aboriginal titleholders who own the resources. The
federal and provincial governments have no beneficial
interest in these resources, and so should not share in
the revenues they produce.
Some people may balk at the cost of compensating
aboriginal titleholders for past wrongs. But compensation
is generally paid to property owners when their lands and
resources are taken by governments, even when this is
lawfully done for public purposes under statutory
authority. It would be highly discriminatory for aboriginal
titleholders to be treated less favourably, especially when
their lands were taken in violation of the Canadian
Given that these wrongs were committed by governments
acting on behalf of Canadians and B.C. residents, we
should all bear the costs.
In Tsilhqot’in Nation, J ustice Vickers said the “central
question is whether Canadians can meet the challenges of
decolonization.” I think paying compensation for the
wrongful taking of aboriginal lands and resources would
be a significant step in this direction.
BRUCE McIVOR <bmcivor@firstpeopleslaw.com>
Suite 300, 111 Water Street
Vancouver, British Columbia V6B 1A7
Phone: 604-685-4240 Email: enquire@firstpeopleslaw.com
The full text of this article is at <http://www.firstpeopleslaw.com/index/articles/158.php>

“Welcome to the Post-Denial Period of Indigenous Rights”
Canadians awoke this morning to the post-denial period of
Indigenous rights. Like any new day, promise and hope
abounds. What tomorrow will bring is up to all Canadians,
Indigenous and non-Indigenous alike. But first, it is time to
take stock.
The dots-on-a-map theory of Aboriginal title is dead.
The Supreme Court confirmed that Aboriginal title can
include territorial claims and that the occupation
requirement for proof is not limited to intensive, regular
use of small geographical sites (e.g. fishing spots and
buffalo jumps). Rather, regular use of large swaths of land
for traditional practices and activities (e.g. hunting,
trapping and fishing) when coupled with exclusivity may
be sufficient to ground a claim for Aboriginal title.
The implications are profound. Government’s myopic
focus on dots-on-a-map is now indefensible.
Indigenous people are now able to seek recognition of their
territorial claims to Aboriginal title. For those, like the
Tsilhqot’in, who are ultimately successful, the change will
be dramatic. Subject to justifiable infringements, they will
enjoy the right to exclusively use and occupy their
Aboriginal title lands, to benefit from their lands and to
decide on how their lands will be managed. In other words,
they will, in large part, enjoy the rights and privileges of
their ancestors. Over a century of denial will be put to rest.
The Duty to Consult
The duty to consult has new life.
The possibility of territorial claims for Aboriginal title
based on traditional activities will shift the duty to consult
equation in favour of Indigenous people. Government and
industry will have to step up and acknowledge the new
reality – ostriches will be playing a high-risk game. The
Court in Tsilhqot’in confirmed that a failure to
meaningfully consult and accommodate Indigenous people
prior to a successful claim for Aboriginal title will leave
government and industry exposed to cancelled
authorizations and claims for damages.
As the Court specifically stated, there is a simple and
effective way for government and industry to avoid the
uncertainty and risk they now clearly face – Obtain the
consent of Indigenous people before you mess with their
lands and resources.
Provincial Laws
The Provinces have assumed a heavy burden. When the
provinces awaken to the reality of what it takes to justify
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -38-
an informative <e-note> by fourarrows@rogers.com 6July 2014
an infringement, they may well regret their ‘success’ on
this issue.
In permitting provincial laws to apply to Aboriginal title
lands the Court made new law and saddled the provinces
with hefty legal obligations. The Court clarified that when
Indigenous people succeed in confirming their Aboriginal
title a province will not simply be able to apply their laws
through box-ticking consultation. They will be subject to
the much more onerous burden of obtaining consent or
justifying infringements.
The jig is up. New government mandates for the British
Columbia treaty process are necessary. It is hard to
imagine why Indigenous people would join or continue to
participate in the current process with its pre-determined,
non-negotiable government limitations when the reality
and promise of Aboriginal title has been confirmed.
Those who assume that Tsilhqot’in will not affect Treaty
people are mistaken. For Indigenous people with
pre-Confederation treaties (e.g. the Douglas treaties on
Vancouver Island and the peace-and-friendship treaties in
the Maritimes) the implications are obvious. Their claims
to Aboriginal title can now be pursued with renewed
confidence. Their demands that government obtain their
consent before exploiting their lands have new credibility.
We honour those, both Indigenous and non-Indigenous,
who did so much in the long struggle to have Aboriginal
title recognized and confirmed but did not live to see their
dream realized.
Thanks are owed to the current generation who inherited
the weight of their ancestors’ efforts and did not shrink
from the responsibility.
And a recommitment is owed to future generations to
ensure that this remarkable success is not undermined by
The Supreme Court has handed all Indigenous people a
mighty victory – now is the time to see that the promise is
JACK WOODWARD jack@woodwardandcompany.com
WOODWARD & COMPANY LLP http://woodwardandcompany.com/
2nd Floor, 844 Courtney Street
Victoria, BC V8W 1C4
Phone: (250) 383-2356
After a courageous struggle, a small Tsilhqot'in First
Nation that took on the governments of Canada and British
Columbia to protect their land and way of life has been
victorious at the Supreme Court of Canada. Today, the
court upheld the trial findings of the late J ustice David
Vickers, and granted the very first declaration of
Aboriginal title in Canada.
"For 156 years, since the colony of British Columbia was
formed, the government has assumed that it owns the land,
ignoring the rights of Indigenous peoples," said J ack
Woodward, lawyer for the Plaintiff. "In today's judgment,
the Supreme Court declared that First Nations continue to
own their lands. The denial of aboriginal land rights, and
its violent and grim social results, can no longer continue
in light of this ground-breaking ruling."
“This decision changes the legal landscape in British
Columbia for industrial project development, whether its
mines, pipelines, or LNG; proponents now have a clearer
sense of the jurisdictional power of First Nations and their
ability to protect their lands from unsustainable
development,” noted Woodward.
Woodward & Company LLP would like to say
sechanalyagh! to the Tsilhqot'in Elders and all the
Tsilhqot'in people who worked so hard for so many years
to make this outcome possible. We would also like to
thank all the organizations and individuals whose personal
sacrifices and support over this 25-year journey were
This could not have happened without the efforts and
dedication of so many, including the years of effort by all
the Plaintiff-side members of the Aboriginal Law bar and
the courageous trial decision of the late J ustice David
Vickers; we raise our hands to you! Thank you to our
friends and families for their love, support and sacrifices.
Thank you to the Songhees and Lekwungen people on
whose lands we live and work. And, as ever, as always, to
our fearless leader J ack, whose courage and unsinkable
belief that justice will always prevail is our guiding light.
In early 2008, after BC Supreme Court J ustice David
Vickers’ initial ruling in favour of the Tsilhqot’in First
Nation, Damien Gillis interviewed the plaintiff’s lead
lawyer, J ack Woodward at his office in Victoria.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -39-
an informative <e-note> by fourarrows@rogers.com 6July 2014
In the interview, Woodward details the case itself, the
intersection of aboriginal title and rights with BC’s
fascinating colonial history, and the implications of the
decision on the future of resource development in the
province and across the country – everything from mines
to hydroelectric development and oil and gas.
Nearly seven years later, Woodward’s comments prove
every bit as insightful and relevant, with the Tsilhqot’in
victory at the Supreme Court of Canada – aptly called a
“game-changer” for resource development in Canada. See
the interview on
JFK LAW CORP 816 – 1175 Douglas Street Vancouver, BC V6B 5L1 Tel: 604-687-0549
JFK Law CorpVictoria 340 - 1122 Mainland St., Victoria, B.C. V8W 2E1 Tel: 250-405-3460.
Robert J. M. Janes and Karey Brooks acted for interveners Te’mexw Treaty Association in Tsilqot’in.
Supreme Court of Canada Releases Landmark Aboriginal Title Decision
On J une 26, 2014, the Supreme Court of Canada granted
the first ever declaration of Aboriginal title, a significant
victory for Aboriginal peoples across Canada.
The court recognized that Aboriginal title can exist over
large tracts of land, not just traditional village sites or
farms. The court also made some important findings about
the rights that come with Aboriginal title. The court found
that holders of Aboriginal title have similar rights to
private property owners. They have the right to: decide
how the land will be used; the enjoyment and occupancy of
the land; possession of the land; the economic benefits of
the land; and the use and management of the land.
Aboriginal title is a collective right, so the land cannot be
used by Aboriginal title holders in a way that would
prevent the use and enjoyment of the land by future
generations, but that does not mean that uses are restricted
to traditional practices. Aboriginal title holders may put
the land to modern uses if that is their choice.
As a result of this case, once Aboriginal title is recognized
over land, by agreement or in the courts, the government
and any individuals or companies must get the Aboriginal
group’s consent to use the land. If they cannot get consent,
government can only use the land if they have fulfilled
their duty to consult and accommodate the Aboriginal
group, they have a “compelling and substantial objective”
behind their actions, and their actions are consistent with
the Crown’s fiduciary obligation towards the group.
This means the government’s action must respect the
interests of the Aboriginal people and cannot deprive
future generations of title holders of the use of the land.
The court also said some important things about how the
government must deal with land that is subject to an
Aboriginal title claim. Even where title is not yet proven,
the government has a duty to consult and accommodate
the Aboriginal group. Where the claim to title appears to
be strong, this will require a high level of consultation and
possibly accommodation. Where the claim is particularly
strong, the government may have an obligation to preserve
the land until the claim is resolved.
While consent is not required where Aboriginal title has
not yet been recognized, the court encouraged govern-
ments and industry to get consent from Aboriginal groups
if they want to avoid legal wrangling in the courts over
failure to consult.
This case provides Aboriginal peoples in Canada with
some important legal tools to prevent government action
on lands subject to Aboriginal title claims and a clear way
forward for First Nations who wish to seek recognition of
their title to traditional lands. The decision also highlights
the importance of meaningful consultation to address
impacts to First Nations’ rights, including both Aboriginal
rights and Treaty rights. In some cases, that duty will
require the Crown to take steps to preserve the First
Nations’ interests.
Initial practical steps that First Nations may take in
response to this decision include:
1. Ensuring that in any consultation process, the Crown
is put on notice, in writing, of the First Nation’s claim
of Aboriginal title and the need to ensure that the land
is preserved pending resolution of any such claim;
2. Informing the Crown during consultation processes
how the government’s proposed action will
substantially deprive future generations of the use of
land subject to Aboriginal title; and
3. Consider compiling existing evidence of title
(reports, maps, studies, oral histories etc.). Send that
material to the Crown (ideally on a cd-rom) as part of
the consultation record.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -40-
an informative <e-note> by fourarrows@rogers.com 6July 2014
Suite 109, 5884 Rama Road,
Rama, Ontario L3V 6H6
705.325.0520 mail@nncfirm.ca
The Crowns lost: common sense, the rule of law and constitutionalism prevailed
The Tsilhqot’in Nation case is a landmark decision
because it is the first time in history that the Supreme
Court ever issued a declaration of Aboriginal title –
essentially a declaration that the Tsilhqot’in owned the
It is clear the Court had no other legitimate choice.
The BC government did not properly consult and
accommodate the Tsilhqot’in people with regard to
forestry operations within their lands. The BC Supreme
Court had issued a non-binding ruling wherein J ustice
Vickers said that the Tsilhqot’in probably had Aboriginal
title and that the Crown ought to negotiate a fair and
honourable settlement.
What did the federal and BC governments do? Ignoring
previous directions from the Supreme Court to seek
reconciliation, they decided to appeal the ruling to the BC
Court of Appeal. Then it went to the Supreme Court of
The Crowns lost; common sense, the rule of law and
constitutionalism prevailed.
The Crown governments argued that Aboriginal claimants
had to establish intensive physical use of specific tracts of
land to prove Aboriginal title – what has come to be
known as the “postage stamp” theory of Aboriginal title.
As the ethnocentric argument goes, the Tsilhqot’in and
Aboriginal peoples generally were nomadic or
semi-nomadic and unlike sedentary agricultural people,
could never establish Aboriginal title to their traditional
Further, one of the most interesting things about the
Tsilhqot’in case is with regard to the doctrine of terra
nullius, a Latin term which means empty land. That theory
espouses that Indigenous peoples were so uncivilized that
they could not be seen in law to be true legal occupants
and owners of their lands.
It was the legal basis upon which Indigenous peoples were
dispossessed of their lands throughout the colonial period
in many parts of the world. The Crown postage stamp
theory of Aboriginal title is reminiscent of the doctrine of
terra nullius. The Supreme Court has now stated
unequivocally in the Tsilhqot’in case that the doctrine of
terra nullius is not part of the law in Canada.
There is another important point in the case and that is the
issue of consent. The Supreme Court wrote that whether
before or after a declaration of Aboriginal title,
governments and individuals can avoid an infringement of
the duty to consult by obtaining the consent of the
Aboriginal group affected.
This effectively raises the significance of the First Nation
communities in decision-making processes regarding
resource management decisions affecting their land and
rights. This lends credence to the United Nations
Declaration on the Rights of Indigenous Peoples, which
calls for the free prior and informed consent before
development on Indigenous lands.
What are the implications of the Tsilhqot’in Nation case
for Canada? Will Crown conduct change? It is hard to say.
Unfortunately, judging from their past conduct, it is quite
likely that federal and provincial governments will again
ignore the advice of the Court on reconciliation. This will
mean more conflict in the future.
However, I am hopeful that the Crown will learn from this
case: that they will sit down with Indigenous peoples,
modify federal and provincial laws and policies to
positively embrace what section 35 of the Constitution Act,
1982 provides, and what the Supreme Court has been
saying all along – Aboriginal and treaty rights are hereby
“recognized and affirmed”, and not denied, infringed and
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an informative <e-note> by fourarrows@rogers.com 6July 2014
JESSICA CLOGG, SENIOR COUNSEL jessica_clogg@wcel.org
2000- 2006 West 10th Avenue
Vancouver, BC Canada, V6J 2B3
Phone: 604-684-7378
“Legal barriers to proving title in the courts have been lowered substantially”
We acknowledge with gratitude the leadership, Elders and
community members of the Tsilhqot’in Nation for their
courage and strength in this long fight, and the hard work
of the many First Nations and organisations who brought
their voices to the court as interveners, as well as the legal
teams of all involved.
The SCC decision increases legal risk for Enbridge: once
title is established, it may be necessary for the Crown to
reassess prior conduct in light of the new reality in order
to faithfully discharge its fiduciary duty to the title-
holding group going forward. For example, if the Crown
begins a project without consent prior to Aboriginal title
being established, it may be required to cancel the project
upon establishment of the title if continuation of the
project would be unjustifiably infringing.
If legislation was validly enacted before title was
established, such legislation may be rendered inapplicable
going forward to the extent that it unjustifiably infringes
Aboriginal title.”
In the result the legal barriers to proving title in the
Canadian courts have been lowered substantially.
A new emphasis on seeking and obtaining the consent of
First Nations to proposed development in their territories
is front and centre in the SCC decision. After confirming
that Aboriginal title includes “the right to proactively use
and manage the land” the Chief J ustice goes on, as
follows: “I add this. Governments and individuals
proposing to use or exploit land, whether before or after a
declaration of Aboriginal title, can avoid a charge of
infringement or failure to adequately consult by obtaining
the consent of the interested Aboriginal group.”
Confirming our shared responsibility to future generations
is another important theme in the Tsilhqot’in decision.
One of the unique elements of Aboriginal title is that it is a
“collective title held not only for the present generation
but for all succeeding generations”; this means that
Aboriginal title lands can’t be “developed or misused is a
way that would substantially deprive future generations of
the benefit of the land”.
In Tsilhqot’in, SCC goes an important further step, and
confirms that this inherent conservation limit also restricts
the Crown, and by extension third parties who seek Crown
licences, approval or permits for development. In the
decision, the Chief J ustice emphasizes that: “This means
that incursions on Aboriginal title cannot be justified if
they would substantially deprive future generations of the
benefit of the land”.
Consultation must occur before resource development
decisions are made
In light of the Tsilhqot’in decision this is a significant
legal vulnerability for the federal government and
Enbridge. More particularly, in reviewing the obligations
of the Crown to consult and accommodate First Nations
prior to a court confirmation of title, the Chief J ustice
emphasized that: “The duty to consult must be discharged
prior to carrying out the action that could adversely affect
the right.” With clarification from the Supreme Court of
Canada that consultation must occur before the Crown
takes action that could adversely impact Aboriginal title
and rights, the legal vulnerability of the federal
government and Enbridge on this point is apparent.
All told, the Tsilhqot’in decision will have profound
implications for all aspects of land and water use in
British Columbia, but given the timing of the decision,
perhaps none more so than the proposed Enbridge
Northern Gateway tankers and pipelines project.
The full text of the media statement is available at
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -42-
an informative <e-note> by fourarrows@rogers.com 6July 2014
671D Market Hill Vancouver, BC V5Z 4B5 Telephone: (604) 879-4505
Tsilhqot’in Nation was represented before the Supreme Court of Canada
by David M. Rosenberg, Q.C., Jay Nelson, David M. Robbins and Dominique Nouvet.
“Aboriginal Title Holders Own Their Land Lock, Stock and Barrel”
It may take a while for the decision to sink in and it may
require a paradigm shift in the way government has
approached the issue but Aboriginal title is not a difficult
concept. Aboriginal title is tantamount to ownership.
Aboriginal title holders own their land, - lock, stock and
There are three things that differentiate Aboriginal title
from fee simple or what we commonly think of as
ownership. Aboriginal title is inalienable except to the
Crown. It is held communally, and the title holder is
subject to the inherent limit in that Aboriginal title lands
cannot be wasted or destroyed.
The Chief J ustice of the Supreme Court of Canada has
spoken clearly and most eloquently for a unanimous court.
All eight J ustices agreed and there were no dissents. The
decision was not close.
If Government wants to interfere with that “right of
ownership”, that right to pro-actively manage and make
decisions about the use of the land and its resources, it
needs to seek the consent of the First Nation that holds
The Chief J ustice of the Supreme Court of Canada has
spoken clearly and most eloquently for a unanimous court.
All eight J ustices agreed and there were no dissents.
The decision was not close. How much land are we
speaking of in British Columbia that is subject to
Aboriginal title?
Most of the land in British Columbia is not covered by
Treaty. There have been no conquests. There has never
been a legal dispossession of the land through colonial
legislation or otherwise. So for most of British Columbia,
where exclusive occupation can be established at the date
of sovereignty assertion (1846) that land is owned by the
First Nation that exclusively occupied it.
When we describe lands that are subject to Aboriginal title
we are not speaking of spots or sites or intensively used
pockets. We are speaking of territories. In each case it will
be a question of fact as to the actual area of land that a
First Nation exclusively occupied at the relevant time. For
the Tsilhqot’in, the Supreme Court of Canada has upheld
the Trial J udge’s finding that it holds title to almost 2,000
square kilometers in central BC.
It is safe to say that this case will have a major impact on
resource development and land use in British Columbia
and Canada. First Nations will have more bargaining
power at Treaty tables. First Nations will be able to reap
the economic benefit from their lands and sustain their
cultures into the future.
422 - 1080 Mainland Street Vancouver, BC, V6B 2T4
604-681-4146, info@mandellpinder.com
for the full media release.
“Watershed Decision Significantly Alters Legal Landscape in Canada”

In a watershed decision released today, the Supreme Court
of Canada (“SCC”) allowed the Tsilhqot’in Nation’s
appeal and, for the first time in Canadian history, granted a
declaration of Aboriginal title.
This case significantly alters the legal landscape in Canada
relating to land and resource entitlements and their
Impacts of Provincial Legislation

In light of its declaration of Aboriginal title, and based on
the Forest Act’s definition of “Crown timber” and “Crown
lands” not including timber on Aboriginal title lands, the
SCC found that the Forest Act did not apply to the
Tsilhqot’in’s Aboriginal title lands. The SCC concluded
that “the legislature intended the Forest Act to apply to
land under claims for Aboriginal title up to the time title is
confirmed by agreement or court order.” However, once
Aboriginal title is proven, the beneficial interest in the
land, including its resources, belongs to the Aboriginal title
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -43-
an informative <e-note> by fourarrows@rogers.com 6July 2014
On the question of whether provinces can legislate in
relation to Aboriginal title and rights, or whether this
amounts to an interference with a core area of federal
jurisdiction under s. 91(24), the SCC held that the doctrine
of inter-jurisdictional immunity did not apply.
The SCC reasoned that the inter-jurisdictional issue in this
case was not one of competing provincial and federal
powers but, rather, of addressing the tension between the
rights of Aboriginal title holders to use their lands as they
choose, and the authority of the Province to regulate land
use. The SCC concluded that the guarantee of Aboriginal
rights in s. 35 of the Constitution Act, 1982 operates as a
limit on both federal and provincial legislative powers;
therefore, the proper way to curtail interferences with
Aboriginal rights and to ensure respect from Crown
governments, is to require that all infringements, both
federal and provincial, are justified.
Sufficient and Exclusive Occupation
The SCC reasoned that Aboriginal title was not limited to
village sites but also extends to lands that are used for
hunting, fishing, trapping, foraging and other cultural
purposes or practices. Aboriginal title may also extend
“beyond physically occupied sites, to surrounding lands
over which a Nation has effective control.” The SCC
endorsed further examples of Aboriginal occupation
sufficient to ground title including “warning off
trespassers,” “cutting trees,” “fishing in tracts of water”
and “perambulation.”
Further, the SCC affirmed the importance not only of the
common law perspective but also of the Aboriginal
perspective on title including Aboriginal laws, practices,
customs and traditions relating to indigenous land tenure
and use. The principle of occupation, reasoned the SCC,
“must also reflect the way
of life of Aboriginal people, including those who were
nomadic or semi-nomadic.”
The SCC reasoned that the criterion of exclusivity may be
established by proof of keeping others out, requiring
permission for access to the land, the existence of trespass
laws, treaties made with other Aboriginal groups, or even a
lack of challenges to occupancy showing the Nation’s
intention and capacity to control its lands.
Moving Forward
This case provides First Nations with significantly
improved opportunities to advance their Aboriginal title
and rights in a manner that reflects their vision, values and
The SCC’s decision essentially requires that the Crown
and industry meaningfully engage with Aboriginal title
holders when proposing to make decisions or conduct
business on their territories.
This engagement can no longer be limited to “small spots”
but must be achieved with a view to tangibly addressing
the incidents of title affirmed by this case; namely, the
right of enjoyment and occupancy of title land; the right to
possess title land; the right to economic benefits of title
land; and the right to pro-actively use and manage title
land. In this light, as the Court emphasized the Crown and
industry would be well advised to “avoid a charge of
infringement or failure to adequately consult by obtaining
the consent of the interested Aboriginal group.”
Pragmatically speaking, this case provides sound guidance
for effective and balanced consultation and
accommodation discussions regarding decisions taken on
Indigenous lands.
Paul Seaman paul.seaman@gowlings.com (416) 862-3614;
Scott A. Smith, Maya Stano and Guy Régimbald
Offices in Ottawa, Montreal, Toronto
The full summary of the case is at http://www.gowlings.com/RepresentativeWork/case.asp?caseID=1245
One of the most significant Aboriginal law cases in Canadian history
The Supreme Court of Canada (the “Court”) rendered one
of the most significant Aboriginal law cases in Canadian
history: the decision in the Tsilhqot’in case marks the first
time in Canadian law that a declaration of Aboriginal title
has been made; prior cases had indicated that Aboriginal
title as a legal concept existed, but no case had made an
actual finding of Aboriginal title until now.
The case is expected to have significant ramifications,
particularly in British Columbia, given the relative paucity
of Aboriginal treaties across that province.
The Court considered the following six issues in deciding
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -44-
an informative <e-note> by fourarrows@rogers.com 6July 2014
the appeal:
Whether the “technical error” in the Tsilhqot’in’s
pleadings noted by the courts below precluded the
issuance of a declaration of Aboriginal title;
What the test for Aboriginal title is, and in particular, to
what extent Aboriginal peoples may prove title
throughout their traditional territories as opposed to at
specific sites;
Whether the test for Aboriginal title was met in this
The legal characterization of Aboriginal title;
What duties were owed by the Crown to the Tsilhqot’in
at the time of the Crown’s decision to allow logging
within the Claim Area; and
The extent to which provincial laws of general
application, and in particular the B.C Forest Act in this
case, may apply to Aboriginal title lands.
1. Applicable legal principles and evidence relating to an
Aboriginal title claim may be unclear at the outset of the
case, and that it is in any event “in the broader public
interest that land claims and rights issues be resolved in a
way that reflects the substance of the matter” to achieve
reconciliation mandated by s. 35.
2. Referring to its previous decision in Delgamuukw and
the High Court of Australia’s decision in Western
Australia v. Ward (2002), 213 C.L.R. 1, the Court
confirmed that the test for Aboriginal title relied on three
characteristics that should not be considered independently
or in a rigid fashion: (i) sufficient pre-sovereignty
occupation; (ii) continuous occupation (where present
occupation is relied on); and (iii) exclusive historic
3. The Court confirmed that whether the evidence in a
particular case supports Aboriginal title is a question of
fact to be determined by the trial judge, and held that the
trial judge applied the proper test of “regular and exclusive
use of the land.” Conversely, the Court held that the Court
of Appeal had erroneously applied a standard of “regular
presence on or intensive occupation of particular tracts”
and further confirmed that the Delgamuukw case had
affirmed a “territorial” approach.
4. Reviewing its earlier decisions relating to Aboriginal
title, the Court confirmed that Aboriginal title includes the
following rights: a) decision-making power over how the
land will be used; b) enjoyment and occupancy of the land;
c) possession of the land; d) economic benefits arising
from the land; and e) pro-active use and management of
the land
5. Importantly, the Court concluded by remarking that
“[g]overnments and individuals proposing to use or exploit
land, whether before or after a declaration of Aboriginal
title, can avoid a charge of infringement or failure to
adequately consult by obtaining the consent of the
Aboriginal group.”
6. Notably, the Court drew an important distinction
between general regulatory legislation and legislation that
assigns Aboriginal property rights to third parties. The
Court reasoned the former, such as legislation aimed at
environmental conservation, will often pass the above test,
whereas the latter will not.
DAVIES WARD PHILLIPS & VINEBERG LLP http://www.dwpv.com/en/
ALEXANDRA PIKE apike@dwpv.com AND SARAH POWELL apike@dwpv.com
155 Wellington Street West
Toronto, ON M5V 3J7
Telephone: 416.863.0900
On J une 26, 2014, the Supreme Court of Canada (SCC)
granted the appeal of the Tsilhqot’in Nation, confirming
their aboriginal title over tracts of Crown land in B.C.
Until this landmark decision, previous claims of aboriginal
title had failed to meet the stringent test set out in the
SCC’s 1997 decision in Delgamuukw for aboriginal title to
lands: the aboriginal claimant must demonstrate that their
occupation of the lands before sovereignty was sufficient,
continuous and exclusive. By demonstrating that the
Tsilhqot’in Nation’s semi-nomadic ancestors had hunted,
fished and gathered on the lands prior to sovereignty to the
exclusion of others and that the Tsilhqot’in Nation
continues to use the lands today, the Tsilhqot’in Nation
had their right to control such lands assured through a
declaration of aboriginal title.
The decision confirms the Crown’s obligation to consult
and accommodate Aboriginal interests on such lands and
goes further to explain that any development on Aboriginal
title lands would be subject to the consent of the aboriginal
titleholder. Absent such consent, the Crown can only
infringe proven aboriginal title by establishing such use is
justified on the basis of the broader public good under
Section 35 of the Constitution Act, 1982. The Crown must
establish that the infringing use serves a compelling and
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -45-
an informative <e-note> by fourarrows@rogers.com 6July 2014
substantial public interest and is consistent with the
Crown’s fiduciary duty to the aboriginal titleholder.
The SCC called for a culturally sensitive approach to
assessing title, recognizing the intention and capacity of
the Tsilhqot’in Nation to control the area. By confirming a
territorial use-based approach to analyzing aboriginal title
(i.e., rather than relying on proven use at specific sites),
this decision provides important guidance to governments
and development proponents: “the court must be careful
not to lose or distort the aboriginal perspective by forcing
ancestral practices into the square boxes of common law
concepts, thus frustrating the goal of faithfully translating
pre-sovereignty aboriginal interests into equivalent modern
legal rights.”
Concerns over widespread development restrictions
resulting from this decision are likely premature. On the
issue of what public benefit objectives could justify
infringement on aboriginal title, the SCC confirmed its
decision in Delgamuukw that the development of
agriculture, forestry, mining, hydroelectric power and
infrastructure could be compelling and substantial, but
would have to be considered on a case-by-case basis.
In this case, the enactment and application of B.C.’s
forestry management and harvesting regime to the
aboriginal title lands of the Tsilhqot’in Nation failed to
meet this test. The findings of the lower court were upheld
as to the limited public benefit (economic or ecological) of
the forestry regime, and it was determined that undue
hardship and denial of rights of the Tsilhqot’in Nation
would result.
What perhaps should be given more attention is the
assertion by the SCC that the aboriginal titleholder and any
government authorizing development on the lands must
ensure that such development does not deprive future
aboriginal generations of the control and benefit of the
lands. We can expect that the exhaustion of particular
resources and the footprint of proposed developments will
be given significant scrutiny.
After 20 years in the courts, the success of the Tsilhqot’in
Nation in this case has ushered in another important phase
of aboriginal rights recognition in Canada and provides
important guidance on how the concepts of sufficiency,
continuity and exclusivity will be applied to aboriginal title
claims across Canada.
Resource development in areas where aboriginal title
remains an issue (predominantly B.C. and Eastern Canada,
but also parts of Ontario, Quebec and the North) will
require enhanced aboriginal engagement, clear public
benefit and protection of future aboriginal use.
MCMILLAN LLP http://www.mcmillan.ca/
Brookfield Place, Suite 4400, 181 Bay Street
Toronto, Ontario M5J 2T3
Tel: +1 416 8657000
While there is no question that Tsilhqot’in is a significant
decision, it is equally important to note that most of the
Court's findings simply summarize or restate holdings in
previous decisions, all of which have been part of the
development of the law of Aboriginal title over the last
First and foremost, the decision confirms the existing
jurisprudence on the test for establishing Aboriginal title
and the nature of it. It requires exclusive occupation by
Aboriginal groups at the time Canadian sovereignty was
asserted. While the additional guidance that the Court
provides in determining what is sufficient "occupation" at
the time of sovereignty is important, the Court specifically
notes its findings are consistent with its prior decisions: "In
fact, this Court in Marshall; Bernard did not reject a
territorial approach, but held only (at para. 72) that there
must be "proof of sufficiently regular and exclusive use" of
the land in question, a requirement established in
Delgamuukw." (para 43)
And while the area of land over which title was found is
not insignificant, it is also important to note that it
represents only approximately 2% of the Tsilhqot'in
traditional territory.
The Court also comments extensively on the nature of
Aboriginal title, and other related principles such as the
inherent limitation that Aboriginal groups not use title
lands in a manner that is inconsistent with enjoyment by
future generations. It also comments extensively on the test
by which infringement of Aboriginal title can be
"justified". But again, all of these findings are based on the
Court's prior decisions and do not represent any major
changes in the law.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -46-
an informative <e-note> by fourarrows@rogers.com 6July 2014
There are a few passing comments from the Court that will
surely be the subject of further discussion in future
litigation. For example, the Court makes a brief statement
at paragraph 92 to say that projects might need to be
cancelled if they begin without Aboriginal consent, title is
later proven and continuing the project would be
"unjustifiably infringing". Similarly, the Court states at
paragraph 86 that "incursions on Aboriginal title cannot be
justified if they would substantially deprive future
generations of the benefit of the land".
Provincial jurisdiction over title lands
The one area where this decision does represent a
significant change in the law is that, for the first time, the
Supreme Court of Canada clearly states that provincial
legislation can apply to lands that are subject to Aboriginal
title. While the application of such legislation will be
dependent on meeting the justification analysis, there are
no inherent limits from a federal/provincial division of
powers perspective that prevent the provincial government
from legislating over Aboriginal title lands.
By holding that the well-established constitutional doctrine
of "interjurisdictional immunity" has no potential
application in these circumstances, the Court has
eliminated one of the key clouds of uncertainty that existed
after the decisions below.
Now governments will have to carefully consider how to
tailor legislation to ensure that its application on
Aboriginal title lands happens only in a manner that will
be considered "justified". While there will no doubt be
challenges in doing so, this is, from a constitutional
perspective, a good problem for provincial governments to
Will there be a floodgate of Aboriginal title litigation?
An inevitable question is whether this decision will result
in a significant number of other Aboriginal title claims
coming forward through litigation. Only time will tell, but
it is certainly not inevitable that this will be the case. Such
litigation costs many millions of dollars, and at the end of
the day, federal and provincial legislation can still infringe
Aboriginal title for compelling purposes including
economic development, mining and forestry.
While Aboriginal title can provide Aboriginal groups with
very important abilities to determine the use of land
(subject to any justified infringements) and derive
economic benefits, one should not underestimate the
degree to which involvement in land use, regulatory
decision-making and benefit sharing can occur in pre-proof
context through the exercise of rights concerning the duty
to consult and accommodate.
And while there is no requirement to provide economic
benefits during the consultation and accommodation that
takes place before Aboriginal rights or title are proven in
Court, as a matter of practice it is quite common, and the
government of British Columbia has brought forward
many types of revenue sharing and other non-treaty
arrangements that provide meaningful benefits to
Aboriginal groups.
Ultimately, Aboriginal groups will have to determine
whether they believe the additional rights and benefits that
they derive from pursuing title litigation, with all of its
costs and uncertainties, are sufficiently worth it. It is
certainly possible that many will decide it simply is not,
provided that meaningful reconciliation initiatives
continue in the pre-proof context.
Is compensation required for past activities once title is
Aboriginal title includes the right to economic benefits
from the land, and since Aboriginal title is established at
the time of sovereignty, a significant question remains
about whether and what compensation will be owed by
governments to Aboriginal groups in respect of any
unjustified resource extraction that occurred between the
date of Canadian sovereignty and the date a Court may
ultimately find Aboriginal title.
This issue is not addressed by the Court in this decision,
but it is one of the most significant questions that remain
unanswered at this time. In earlier decisions such as
Delgamuukw, the Court spoke openly about claims for
damages resulting from unjustified infringements of
Aboriginal title, without appearing to limit that discussion
to activities that occurred before title was proven. But in
no case to date has the Court ruled conclusively on these
The Tsilhqot'in decision is historic and groundbreaking in
the sense that it is the first time Aboriginal title has been
declared under a framework that has been in existence for
decades. But in many respects the decision simply adopts
and applies existing jurisprudence and does not represent a
substantial change in the law of Aboriginal title. It does
however provide clarification on what constitutes
"occupation" for title purposes, as well as confirmation
that provincial laws continue to apply to Aboriginal title
lands, subject to justification requirements. Such clarity is
essential to promote reconciliation efforts and the
continued governance of Canada and British Columbia.
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -47-
an informative <e-note> by fourarrows@rogers.com 6July 2014
JOSEPH J. ARVAY, Q.C., jarvay@arvayfinlay.com
CATHERINE J. BOIES PARKER cboiesparker@ubplaw.ca
PROFESSOR PATRICK MACKLEM p.macklem@utoronto.ca
The Modern Conception of Aboriginal Title Must Not be Diluted By Concerns
About the Impact of Recognizing Historical Realities
(Intervention in Tsilhqot’in for the Assembly of First Nations)
The promise of the law of Aboriginal title is the recognition
of First Nations, both at the time of the assertion of
sovereignty and in the present, as legal, political and cultural
nations with a right to self determination. These Indigenous
legal orders occupied, used and treated the land as their own.
The modern conception of Aboriginal title must not be
diluted by concerns about the impact today of recognizing
the historical realities of First Nations and their interactions
with the Crown.
There are many and varied ways in which reconciliation of
the two legal orders can be accomplished. But it must start
with recognition and respect for the rights of First Nations as
distinct and sovereign peoples who occupied their land and
territories, in accordance with their own laws.
In addition, Aboriginal title must be conceived in a way
which recognizes the continuing role of First Nations, as
holders of title, to be able to exercise their collective will
over how to use and benefit from that land, into the future.
Only in this way will the constitutional affirmation of
Aboriginal rights and title law play a meaningful role in
structuring and supporting the ongoing relationship between
First Nations and the Canadian state.
Instead, both in its approach to the definition of title, and in
its justification, the Court of Appeal’s decision has the effect
of reducing the Appellant to a group of people who must be
allowed to live in villages and go hunting and fishing
together. Indeed it treats them worse than the settlers who
came long after when they should be treated so much better
given their nation status.
It ignores the significance of their collective intention to
exclude others from the land at the time of the assertion of
sovereignty, and it deprives them of the ability to effectively
continue to control the use of their land into the future.
In Delgamukkw, this Court made it clear that both the
common law and Aboriginal perspectives must be taken into
account in addressing Aboriginal title. The importance of
taking seriously the need to incorporate the Aboriginal
perspective cannot be overstated, and is the subject of
submissions by the Appellant and several interveners. It is
also important to ensure that the common law perspective is
properly interpreted and applied, if those principles are to be
used as part of the framework within which Aboriginal
realities are recognized as modern legal rights.

It is clear that the Crown, in the late 19 and early 20
th th
centuries, understood Aboriginal title (then called Indian
title) to extend to all of those areas habitually used by
Aboriginal peoples. This is evident both from the description
of the lands covered by the treaties entered into at that time
and the establishment of reserves. The Crown did not act in
accordance with an understanding that Aboriginal title only
existed over those lands which were “intensively occupied.”
Instead, it was understood that the Crown needed to enter
into treaties with respect to the full range of an Aboriginal
community’s territory. . .
In an action for a declaration for Aboriginal title, the
judiciary’s role is to go back and assess the historical
evidence to determine what the First Nation’s relationship
with the land was at that time. At or after the assertion of
sovereignty, the Tsilhqot’in Nation and the Crown should
have negotiated a mutually acceptable approach to
co-existence. This aspect is unfinished business and still
needs to occur.
Concerns about the impact of finding that historical
Aboriginal title exists are legitimate, but will only be fully
addressed through respectful negotiation that in turn is based
on recognition of a robust interpretation of Aboriginal title.
That negotiation must be based on an appreciation of the full
extent to which the Tsilhqot’in have been denied their rights,
as well as a full understanding of the competing interests,
such as those of third parties, which may require
accommodation and compromise in the future.
Reconciliation will come as a result of respectful dialogue,
discussion and compromise by the parties. In an action for a
declaration of Aboriginal title, the role of the judiciary is not
to identify what this compromise should be, but to define the
Aboriginal legal entitlements recognized by the Constitution
which are the necessary pre-conditions to meaningful
There is nothing to be gained by refusing to acknowledge
the prior occupation by a First Nation, parties can engage
in substantive negotiations that would lead to far more
nuanced and creative arrangements than any court could
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -48-
an informative <e-note> by fourarrows@rogers.com 6July 2014
devise. It may be that new judicial remedies will have to be
developed to encourage, support and perhaps supervise
those negotiations, based on the honour of the Crown.
J ust as the Court has developed the duty to consult to assist
the parties in the pre-proof stage, it may be necessary to
develop remedies to encourage negotiations. But if the
Court of Appeal’s initial articulation of the First Nations’
Aboriginal title is concerned with ensuring the “well-being
of all Canadians” and minimizing the impact on principles
of Crown sovereignty, the prospect of achieving
reconciliation through mutually respectful negotiations
will be rendered hopeless before it has really begun.
Reconciliation will come as a result of respectful
dialogue, discussion and compromise by the parties. In an
action for a declaration of Aboriginal title, the role of the
judiciary is not to identify what this compromise should
be, but to define the Aboriginal legal entitlements
recognized by the Constitution which are the necessary
pre-conditions to meaningful negotiation.
BRIAN P. DOMINIQUE 416 869 5435, LINDA I. KNOL 416 860 6614
CASSELS BROCK 40 King St. West, Suite 2100
Re Tsilhqot’in, once Aboriginal title has been established,
the Aboriginal title holders have the right to decide how
the land will be used and the right to benefit from
economic development. Governments that seek to use
Aboriginal title land must either obtain the consent of the
Aboriginal title holders or justify any infringements under
s. 35 of the Constitution Act, 1982.
The mere assertion of a claim to Aboriginal title raises
significant implications for governments and project
The SCC affirmed the existing regime from Haida
concerning the Crown's duty to consult and, where
appropriate, accommodate as soon as a claim of Aboriginal
title has been made. The decision underscores the need for
early Crown and proponent consultation with First
Nations, and legal advice in relation to these matters.
In addition, the SCC's decision has the potential to:
open the door for more claims of Aboriginal title;
put some existing and prospective projects at risk in
areas where Aboriginal title has or can be asserted;
shift the balance in some ongoing land claim
negotiations in favour of First Nation claimant(s);
increase the length of time it will take for governments
and proponents to negotiate projects with First Nations
that have existing or potential Aboriginal title claims,
with a corresponding increase in negotiation,
development and settlement costs; and
cause governments to have clear and specified
objectives for any legislation that has the potential to
impact Aboriginal rights in order to pave the way for
justifying any infringements.
There is nothing to be gained by refusing
to acknowledge the prior occupation
by a First Nation, parties can engage
in substantive negotiations that would lead
to far more nuanced and creative
arrangements than any court could devise.
It may be that new judicial remedies
will have to be developed to encourage,
support and perhaps supervise those
negotiations, based on the honour
of the Crown.
Southern Chilcotin Mountains
<e-notes> Tsilhqot’in Decision: Legal Earthquake, Game-Changer, End of Denial: Supreme Court Confirms Aboriginal Titlel, -49-
an informative <e-note> by fourarrows@rogers.com 6July 2014
LAURA EASTON leaston@davis.ca 403.698.8753
HEATHER TREACY htreacy@davis.ca 403.294.3589

Implications of Tsilhqot’in: Why Due Diligence is Crucial
The implications of this decision are significant for several
reasons. The Tsilhqot’in Nation is one of hundreds of
indigenous groups in British Columbia with unresolved
land claims. Therefore, this decision provides important
guidance from our highest court on what is required to
establish Aboriginal title, including as it pertains to
semi-nomadic Aboriginal peoples.
Most importantly, this decision demonstrates the critical
role of the Crown in undertaking consultation and, if
appropriate, accommodation prior to the establishment of
Aboriginal title. After Aboriginal title to land has been
established, the Crown must then seek the consent of the
title-holding Aboriginal group to developments on the
land. Absent consent, development of title land cannot
proceed unless the Crown has discharged its duty to
consult and can justify the intrusion on title under s. 35 of
the Constitution Act, 1982.
The duty placed upon the Crown is significant and, if not
carried out appropriately, may affect the development of
projects by project proponents. As the Court noted, if the
Crown begins a project without consent prior to Aboriginal
title being established, it may be required to cancel the
project upon establishment of the title if continuation of
the project would be unjustifiably infringing.
Similarly, if legislation was validly enacted before title
was established, such legislation may be rendered
inapplicable going forward to the extent that it
unjustifiably infringes Aboriginal title.
While provincial laws of general application will apply to
lands held under Aboriginal title, there are important
constitutional limitations. Any limitations imposed by
provincial laws must not be unreasonable; they must not
impose undue hardship; and they must not deny the
holders of the right their preferred means of exercising the
right. It may be predicted that laws and regulations of
general application aimed at protecting the environment or
assuring the continued health of the forests will often pass
this test.
However, the issuance of licenses, permits or leases on
Aboriginal title land that result in a direct transfer of
Aboriginal property rights to a third party and will plainly
be a meaningful diminution in the Aboriginal group’s
ownership right amounting to an infringement, must be
justified in those cases where it is done without Aboriginal
While project proponents are always encouraged to
undertake their own consultation with Aboriginal groups,
it will become increasingly important to carry out proper
due diligence where claims to Aboriginal title are being
advanced. It will be important to confirm the nature and
status of these claims to better assess the timelines and
required steps associated with project development.
Finally, for project proponents, in cases where Aboriginal
title has not yet been proved and certainly in cases where it
has been proved, it will be crucial to carefully monitor the
Crown’s conduct to ensure that proper consultation and
consent or proper justification is obtained and
established where projects are at stake.

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