Case law appears to be evolving when it comes to property rights around Aboriginal title and the duty to consult. The combined effect of the decisions in several landmark cases, as outlined below, indicates a trend toward a strengthened position for First Nations when dealing with government and industry developments on traditional land.
- First successful declaration of Aboriginal title in Canada – in 2014 the Supreme Court granted the Tsilhqot’in Nation Aboriginal title to land within their traditional territory. Aboriginal title gave the First Nation the right to exclusive use and occupation, to determine the uses, and to enjoy the economic benefits of the land, as well as the requirement of consent or justification before the Crown or a third party uses the land. This decision shifts the duty to consult in favour of First Nations. (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44)
- Provincial authority to take up treaty lands – also in 2014, the Supreme Court stated that the numbered treaties which were entered into with the Crown are to be upheld at the provincial government level as well as the federal. Specifically, a provincial government has the authority to take up lands for provincial matters and thus infringe on treaty rights. (Grassy Narrows First nation v. Ontario (Natural Resources), 2014 SCC48)
- Aboriginal rights and title exist prior to a court’s declaration – as discussed in our post Court Upholds First Nations’ Right to Bring Claims Based on Unproven Aboriginal Rights and Title, in 2015 the British Columbia Court of Appeal confirmed that First Nations do not have to prove their Aboriginal rights through a court declaration in order to bring title claims against a third party. (Saik’uz First nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154)
- The ongoing duty to consult – in 2014 the British Columbia Supreme Court stated that the duty to consult remains an ongoing obligation throughout the life of a project whenever a new decision is made or new information comes to light that may affect Aboriginal rights. (Taku River Tlingit First Nation v. British Columbia, 2014 BCSC 1278)
Based on the judgments listed above it appears that the evolving case law favours First Nations’ when Aboriginal title over traditional lands is established. In these cases, a third party is required to obtain consent or justify an incursion when using the Aboriginal land.
For more details on the court decisions listed above, please follow the links to view the full judgments.