The pessimists were wrong. The Supreme Court's decision on Aboriginal title in Tsilhqot'in has increased legal clarity and given new life to negotiated settlements — which is good for everyone.
When the Supreme Court rendered its Tsilhqot’in decision in June 2014, the federal government’s terse response almost seemed delivered through gritted teeth, while many Canadians experienced a familiar sense of uncertainty and quiet apprehension. But most indigenous leaders and commentators reacted with public celebrations and optimism, seeing the decision as a victory for their communities.
Our view, almost a year later, is that all Canadians and indigenous peoples should celebrate the decision. Tsilhqot’in has provided us with new clarity and has likely improved the relationship between First Nations and the governments and people of Canada.
What exactly did Tsilhqot’in do? For one, the ruling marked the first time that the Supreme Court has positively affirmed the existence of specific Aboriginal title. The Court found that the Tsilhqot’in First Nation, which had never entered into treaty with Canada or British Columbia, still possessed Aboriginal title to a 1,750-square-kilometre parcel of traditional territory in the BC interior.
Moreover, the Court found that Aboriginal title covers all lands over which the First Nation historically exercised control — lands used for hunting and fishing, for example. In other words, nontreaty Aboriginal communities can now legally claim jurisdiction over their entire traditional territories. Previously, Canadian law had maintained a “postage stamp” theory of Aboriginal title: it existed only at sites that historically had been intensively used by the community, such as villages.
The Court also clarified the Crown’s role when encountering that title. Wherever a First Nation asserts Aboriginal title, the Crown is required to “consult in good faith” with the affected First Nation before any proposed uses of land can be undertaken. In cases where a claim is already established in law, the Crown must obtain consent.
If a First Nation withholds consent and the Crown decides to proceed, it can override Aboriginal title. But this is only where the government can show that the infringement serves a “compelling and substantial public purpose,” along with other qualifiers. We don’t yet know exactly where this will apply. We know only that the Crown must clear a high bar of justification before it can interfere with Aboriginal title.
Finally, and importantly, the Court clarified the nature of Aboriginal title. The ruling establishes that First Nations with Aboriginal title possess the same powers over those lands as other landowners in Canada. The only differences are that Aboriginal title is held by the group rather than an individual, and that it must be preserved for the benefit of generations to come (more on that later). The ruling also carries implications for federalism, but those merit a discussion of their own.
Most commentators have treated this decision as a zero-sum outcome, with indigenous groups as the winners and non-Aboriginal governments and businesses as the losers. In the year since the ruling, we’ve often been reminded that this decision will make major resource development and infrastructure projects much more difficult to accomplish.
All Canadians should celebrate the decision.
But we believe this ruling has no losers. This argument becomes clear if we think of the decision as having strengthened indigenous peoples’ property rights over their lands and resources. Generally speaking, when you strengthen property rights, you also reduce transaction costs, increasing the likelihood of cooperation and reducing the likelihood of confrontation. Sometimes you can also increase political and legal accountability. These may ultimately be the effects of Tsilhqot’in.
This decision can facilitate cooperation in the modern treaty process and has done so. Treaties are negotiated between Canada and indigenous communities that did not enter into historical treaties. But progress toward the completion of modern treaties is reliably glacial and fraught with political obstacles.
A key reason that many First Nations have declined to sign modern treaties is that the treaty process prevents them from negotiating title to all of their traditional lands. This has been a deal breaker for some communities, which have not wished to see their traditional territory reduced to the proverbial postage stamp.
Tsilhqot’in has changed this situation somewhat by providing First Nations with new leverage to negotiate a much larger land base. Some First Nations will continue to resist the process, which requires de facto surrender of Aboriginal title. But others — particularly those that have abandoned negotiations in the face of unpalatable settlement terms — can return to the table with new tools to defend their interests.
In the year since the ruling, we’ve already observed these incentives in play. For example, the Kaska Nations of Yukon used the occasion of the ruling to beckon the federal government back to the negotiating table and restart talks, which have foundered since the early 2000s. So by strengthening Aboriginal property rights, Tsilhqot’in could actually jump-start the treaty process.
The popular counterargument is that First Nations will stay away from the treaty process and simply assert their now-stronger Aboriginal title. Many fear that in the absence of treaties, legal and political uncertainty will reign in the new legal environment, stifling economic development.
The opposite may be true. More certainty is precisely what this ruling has provided, by clarifying the duties of the Crown where it or third parties want to use Aboriginal title lands. The old limits that Canadian law had imposed on Aboriginal title were widely repudiated by indigenous peoples. This created regular and intractable conflict. Blockades and occupations occur where indigenous and nonindigenous notions of appropriate, legal land use diverge dramatically.
Last year, the Supreme Court ended this disagreement, to an extent. By telling nonindigenous Canada what First Nations have been saying all along, the Court limited the range of permissible interpretations. In future, governments and businesses will automatically seek First Nations consent early on, rather than encountering blockades later. From Tsilhqot’in emerges a broader consensus about the meaning of Aboriginal title. The playing field may not have been levelled, but both sides are now using the same rule book. In this way, strengthening Aboriginal property rights could very well reduce conflict between indigenous and nonindigenous actors.
The decision also strengthens the property rights of individual citizens of First Nations. The new definition of Aboriginal title establishes that uses of Aboriginal title lands “must be consistent with the group nature of the interest and the enjoyment of the land by future generations.”
The full meaning of this passage will be constructed in time. For now, we take it to mean that First Nations citizens have a legal basis for holding accountable their political leaders on land use decisions. So — for example — if a band council decides to build a casino, community members can challenge that decision in court by arguing that a casino would prevent current and future community members from using those lands for essential community activities like fishing and hunting.
The Indian Act regime is not built to provide community members with tools to hold their political leadership in check. Instead, the lines of accountability are drawn from chiefs and councils up to the minister of Aboriginal -affairs and northern development. At the same time, customary practices of community accountability have — in some communities — been badly eroded after more than a century of Indian Act governance.
Canadian courts are obviously not the most appropriate venue for strengthening community accountability of First Nations leaders. This is something that should ultimately be accomplished through internally directed institution building. But in the interim, the decision has provided Aboriginal citizens — who are generally disempowered in the Canadian political system — with a new tool for representing their interests. This is a very good development for indigenous communities in Canada and for all Canadians.