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Robin Junger is a lawyer with McMillan LLP and co-chairs its aboriginal and environmental law groups. He is a former Deputy Minister of Energy, Mines and Petroleum Resources for the Province of British Columbia.
The recent decision of the Supreme Court of Canada in Tsilhqot’in v. British Columbia is important. But it is not the first case dealing with aboriginal title and it is not a “game changer” that will undermine governmental authority or the ability to approve projects in the resource sector.
Perhaps the most legally significant aspect of the judgment is that it confirms, subject to certain requirements, governments – including provincial governments – can continue to regulate the land base where aboriginal title is claimed or proven.
And the reasons for which title can be infringed are not vague. The court has, twice now, expressly stated that these reasons can include purposes such as infrastructure development, mining, and forestry, provided justification is shown. So while this decision is historic and significant for the Tsilhqot’in people who have been the first to successfully prove title in a specific area, it simply does not represent a fundamental advance for the law of aboriginal title.
To the contrary, it advances the rights of provincial governments to infringe title. It also re-opens the possibility that title may have been extinguished in some cases by provincial laws and actions taken before 1982, when protection for aboriginal rights was put in our constitution.
The Supreme Court has also made clear that aboriginal title can potentially exist in areas beyond mere village sites or areas of permanent historic habitation. This is important but not radical. In fact, the Supreme Court expressly said this finding is consistent with its previous decisions. The bottom line is that title requires proof of occupancy – regular and exclusive use of particular areas of land – at the time Canadian sovereignty was first asserted.
So how much land might be the subject of aboriginal title [if and] as other litigation proceeds? Could it be vast swaths of British Columbia which, as commonly noted, is subject to total claims compromising more than 100% of the province (given overlaps)? That is very doubtful. In this case, the Tsilhqot’in Nation claimed only 5% of their traditional territory aboriginal title, and succeeded in obtaining only 40% of that.
This represents 2% of the traditional territory. And that was for a people that the court accepted as having a particular history which supported a relatively broad interpretation of occupation. It is likely that many other First Nations would not be able to demonstrate the same facts.
For the rest of this column, click here: http://business.financialpost.com/2014/07/10/why-the-supreme-courts-tsilhqotin-land-title-decision-is-no-game-changer/