Quagmire in native land
Parliament must act to mitigate the disastrous outcome of judge-made law governing aboriginal land
The decision last June of the Supreme Court that the Tsilhqot’in Nation has aboriginal title to 1,759 square kilometres of land in central British Columbia with about 200 residents has been well publicized. But the significance for Canadian business, particularly in areas where the land has not been ceded by treaty, has received less attention. Those areas include most of British Columbia, likely much of the Atlantic provinces and parts of Quebec, and stretches of land elsewhere.
For any lands over which aboriginal title is found, or might credibly be sought, the court’s reasoning will have far-reaching consequences. That reasoning flows from the prism through which it views aboriginal rights. The court said in Calder (1973) that “Aboriginal rights survived European settlement and remain valid to the present day unless extinguished by treaty or otherwise,” but the concept underlies judicial decision-making stretching back to the Royal Proclamation of 1763. No previous decisions made aboriginal title concrete in a specific case, but the possibility was strongly foreshadowed in decisions like Delgamuukw and Haida Nation.
Aboriginal title, says the court, is grounded in occupation of the land before the assertion of European sovereignty. This occupation must be sufficient, continuous and exclusive. All three tests, as well as the nature of aboriginal title itself, are rife with issues that will likely be resolved only through protracted future litigation. This is the problem with judgemade law: It resolves only the specific situations that happen to arise. An example of a question left open: Since the judicial analysis indicates that rights to aboriginal title crystallized on sovereignty, any subsequent use of unceded land might be challenged. Might aboriginal title apply to private land?
Consistent also with the prism used by the court, aboriginal title differs from the fee-simple title to which Canadians are accustomed. It belongs to the aboriginal group as a collective, and the land may not be used in a manner prejudicial to the group’s future enjoyment. Any nontraditional use of the land is subject to rigorous judicial scrutiny to verify that the proposed use properly protects the aboriginal interest. Government regulation is subject to similar scrutiny. Just as the provincial forestry licences that led to Tsilhqot’in were swept aside by the court, so might other government regulations (consider wildlife, flood, fire or pest management as examples) be ousted. More than a crack has been opened in the edifice of “applicable law” when it comes to economic activities on aboriginal-title land.
In this environment, the business leader who proposes a manufacturing facility, mine, pipeline or forest harvest on unceded land must negotiate with the aboriginal group if aboriginal title exists or might credibly be sought. The project cannot proceed if the negotiations are unsuccessful. The only qualification is that if the project is in a compelling public interest and supported by govern- ment. Following an elaborate process of consultation, accommodation, demonstration that there is no other way of meeting the public interest, and compensation, a court might be asked to require the aboriginal group to accept it. This is inevitably an expensive, lengthy process of uncertain result. Tsilhqot’in is a good example. Initiated in 1989, it was resolved only in 2014 and involved a 344-day trial. Private litigation is effectively barred.
Should a project proceed on land later found subject to aboriginal title, the court says it may have to be undone — a novel business risk in Canada.
All of this is the consequence of judgemade law, principally by the Supreme Court. The substantive elements of these decisions were entrenched by Section 35 of the Constitution Act 1982, which recognizes and affirms existing constitutional rights. This section was introduced late in the process and received far less debate and scrutiny than the other amendments. It makes the various pronouncements of the court on these issues into part of the Canadian constitution, subject to change only by constitutional amendment or reconsideration by the courts. The word “existing” does not restrict these conclusions, since the various decisions of the courts purport to describe aboriginal rights that have existed ever since sovereignty.
Among the many issues arising under Section 35 is the interaction with Section 91:24, which gives Parliament authority over “Indians.” We believe this authority carries a corresponding responsibility that continues despite Section 35.
The only practical way to proceed is, as the court clearly wants, by negotiation. But the court has loaded the dice: The aboriginal party now has an effective veto where the lands involved are under aboriginal title or where such title might credibly be asserted. At the least, this is an effective device for shifting much of the economic rent in a project to the aboriginal party, and at one level, is overdue. But the process of negotiation, particularly if more than one First Nation is involved, is likely to be prolonged to the point that private investors decide to go elsewhere.
The existing legal position is, in our view, plainly unsatisfactory — even dangerous. When announced, the Tsilhqot’in decision was regarded as a triumph for aboriginal rights, but it contains significant issues and problems even for that constituency. The initial elation of First Nations about the judgment has given way to a sober consideration of the hurdles ahead. For Canada as a whole, it creates a situation of uncertainty that must delay or frustrate important decisions with consequential adverse economic impact.
Elsewhere, we make suggestions as to how this situation might be addressed. Because of Section 35, none is fully satisfactory. But we believe governments, provincial and federal, should make a real effort within the constraints imposed by Section 35 to carry out their responsibility to reduce uncertainty by providing a canon of sensible rules to guide all players. The respectful dialogue that Chief Justice Beverley McLachlin calls for between the courts and Parliament requires the latter to act.
The aboriginal party now has an effective veto where the lands involved are under aboriginal title