Paper: Delgamuukw v. British Columbia (SCC) - Summary of the Reasons for Judgment of Chief Justice Lamer - 1998Posted October 13th, 1998 by Eliana
by Blake, Cassels & Graydon
1. On Thursday December 11th, 1997, the Supreme Court of Canada rendered its decision in the case of Delgamuukw v. British Columbia. The following provides a summary of the decision and highlights the significant issues addressed by the Court.
2. This action was originally commenced by the hereditary chiefs of the Gitksan and Wet'suwet'en Nations ("Hereditary Chiefs") for ownership and jurisdiction of 58,000 square kilometres in northern British Columbia. The action was later transformed into a claim for aboriginal title over the land in question. The province of British Columbia counterclaimed for a declaration that the Hereditary Chiefs have no right or interest in the territory.
3. In the result, the Supreme Court of Canada unanimously held that aboriginal title consists of the right to exclusively use and occupy the land including the right to choose how the land can be used, reasoning that aboriginal title has an "inescapable economic component." The Court allowed the appeal, in part, because the trial judge had not afforded the oral history evidence called at the trial appropriate weight, and therefore, his treatment of the oral history did not conform to evidentiary principles applicable in aboriginal rights cases as enunciated in the Supreme Court of Canada's decision in R v. Van der Peet. The Court ordered a new trial.
4. The Supreme Court addressed a number of substantive issues and enunciated important principles relating to: the significance of oral history, aboriginal title, the test for proving aboriginal title, the scope of constitutional protection to be afforded to aboriginal title, and limitations on the provincial power to extinguish aboriginal title.
5. The Court acknowledged the conventional evidentiary difficulties posed by the use of oral history; however, it accentuated its importance in the adjudication of aboriginal rights and held:
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents (para. 87).
6. In essence, the Court re-affirmed the special evidentiary principles regarding judicial treatment of oral history which were set out in its decision in Van der Peet. Trial courts must accord independent weight to oral history, while recognizing the evidentiary difficulties inherent in adjudicating First Nations claims:
[T]he trial judge gave no independent weight to these special oral histories because they did not accurately convey historical truth, because knowledge about those oral histories was confined to the communities whose histories they were and because those oral histories were insufficiently detailed....The implication of the trial judge's reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system...." (emphasis added, at para. 98)
7. As such, oral history need not provide definitive and precise evidence of pre-sovereignty First Nation occupation on the territory in question, but may demonstrate that current occupation has its origins prior to sovereignty. Further, the interpretation of the evidence must give due weight to the First Nations perspective regarding practices, customs, traditions and their relationship with the land.
8. The Court rejected the Provincial Crown's "bundle of rights" argument which characterized aboriginal title as a collection of site specific, activity based rights:
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves aboriginal rights (para. 111).
What aboriginal title confers is the right to the land itself (para. 138).
aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and...that those protected uses must not be irreconcilable with the nature of the group's attachment to that land (para. 117).
9. The Court further stated that "aboriginal title encompasses within it a right to choose to what end a piece of land can be put" (para. 168), subject to an inherent limitation apparent in the preceding quote, and that it has an "inescapable economic component" (para. 166). Based on this definition of aboriginal title, the Court specifically included mineral rights and their exploitation within the ambit of aboriginal title:
On the basis of Guerin, aboriginal title also encompasses mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands (para. 122).
10. The limitation, however, is that the uses to which the lands are put must not be irreconcilable with the nature of the group's attachment to those lands (para. 125). By way of illustration, if hunting practices were used to demonstrate occupation of, or attachment to territory claimed as aboriginal title lands, the First Nation cannot strip mine the territory. Such use, according to this reasoning, would destroy the future value of hunting practices and, thus, be inconsistent with the First Nation's attachment to the land in question. In keeping with the sui generis, or unique, quality of aboriginal title, the Court supported its conclusion with the following reasoning:
What the inalienability of lands held pursuant to aboriginal title suggests is that those lands are more than a fungible commodity. The relationship between an aboriginal community and the land over which it has aboriginal title has an important non-economic component. The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value (para. 130).
11. Accordingly, the Court held that those uses that threaten the nature of the prior occupation of the lands and the future relationship between the First Nations and the lands are excluded from the content of aboriginal title. However, it must be noted that:
This is not, I must emphasize, a limitation that restricts the use of the land to those activities that have traditionally been carried out on it (para. 132).
12. If First Nations intend to use their lands in a restricted way, e.g. strip mining a hunting ground, they must surrender those lands to the Crown and convert them into "non-title lands" (para. 131). The exact nature of "non-title lands" was not addressed by the Court.
13. In order to make out a claim for aboriginal title, the First Nation asserting title must satisfy the following criteria:
(i) the land must have been occupied prior to European sovereignty (in British Columbia, 1846);
(ii) if present occupation is relied on as proof of occupation pre-sovereignty, then there must be a continuity between present and pre-sovereignty occupation; and
(iii) at sovereignty, that occupation must have been exclusive (para. 143).
14. Establishment of occupation of the land requires a court to take into account both the common-law and the aboriginal perspective regarding the land in question, including aboriginal systems of law (para. 147). "Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group" (para. 128), and may be established, for example, by proof of houses or dwellings situated on the land, cultivation, enclosure of fields and regular use of definite tracts of land for exploiting resources (para. 149).
15. Proof of continuity between present and pre-sovereignty occupation need not constitute "an unbroken chain of continuity" (para. 153, quoting from Van der Peet):
The occupation and use of lands may have been disrupted for a time, perhaps as a result of the unwillingness of European colonizers to recognize aboriginal title. To impose the requirement of continuity too strictly would risk "undermining the very purpose of s. 35(1) by perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers who failed to respect" aboriginal rights to land (para. 54, quoting in part from R. v. Cote).
Rather, evidence of substantial maintenance of the connection between the people and the land is sufficient to establish continuity, even if the nature of the occupation has changed over time (para. 154).
16. With respect to the requirement of exclusive occupation, the Court reasoned that "[t]he proof of title must, in this respect, mirror the content of the right" (para. 155). Such proof must also rely on both the common law and the aboriginal perspective. The Court cautioned against strict adherence to the requirement of exclusive occupation when determining whether aboriginal title exists:
...the test required to establish exclusive occupation must take into account the context of the aboriginal society at the time of sovereignty. For example, it is important to note that exclusive occupation can be demonstrated even if other aboriginal groups were present, or frequented the claimed lands...Thus an act of trespass, if isolated, would not undermine a general finding of exclusivity, if aboriginal groups intended to and attempted to enforce their exclusive occupation (para. 156).
Hence, actual exclusivity is not required as exclusive occupation may be demonstrated by the "intention and capacity to retain exclusive control" (para. 156 quoting McNeil, Common Law Aboriginal Title (1989) at 204).
17. It is important to note that the Court recognized the possibility of shared exclusivity between two First Nations, resulting in joint title:
I would suggest that the requirement of exclusive occupancy and the possibility of joint title could be reconciled by recognizing that joint title could arise from shared exclusivity (para. 158).
18. Aboriginal title is recognized and affirmed as an "existing aboriginal right" in section 35 of the Constitution Act, 1982 and confers a right in land:
[A]boriginal title is "simply one manifestation of a broader-based conception of aboriginal rights". Thus, although aboriginal title is a species of aboriginal rights recognized and affirmed by s. 35(1), it is distinct from other aboriginal rights because it arises where the connection of a group with a piece of land "was of a central significance to their distinctive culture" (para. 137, citing in part R. v. Adams).
19. However, the protection of aboriginal title is not absolute, as the right may be infringed by both federal and provincial governments. Such infringements may be justified pursuant to the test set out in R. v. Gladstone:
(i) the infringement of the aboriginal right must be in furtherance of a compelling and substantial legislative objective; and
(ii) the infringement must be consistent with the special fiduciary relationship between the Crown and First Nations.
20. In Gladstone, the Court set out the reasoning for the limitations placed on aboriginal rights by reference to a "compelling and substantial legislative objective":
Because...distinctive aboriginal societies exist within, and are part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are part of that community), some limitation of those rights will be justifiable. Aboriginal rights are a necessary part of the reconciliation of aboriginal societies with the broader political community of which they are part: limits placed on those rights are, where the objectives furthered by those limits are of sufficient importance to the broader community as a whole, equally a necessary part of that reconciliation (emphasis in original, para. 161).
21. When infringement of an aboriginal right is necessary, the Crown must adhere to its fiduciary duty towards First Nations. The scope of the fiduciary duty is determined according to the nature of the aboriginal right at issue and according to the legal and factual context of the appeal. The Court reiterated its position in Gladstone which altered the notion of priority that was first articulated in Sparrow. The theory underlying the principle of priority is that the fiduciary relationship between the Crown and aboriginal peoples demands that aboriginal interests be placed first. The Crown might take into account the existence and importance of aboriginal rights in allocation resources (para. 162).
22. In the context of aboriginal title, the Court held that justifiable limits on aboriginal rights are a question of fact determinable on a case by case basis, but include the following:
[T]he 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 populations to support those aims...(para. 165).
23. The execution of the Crown's fiduciary duty, specifically with respect to aboriginal title, must be consistent with the elements of aboriginal title - the "exclusive" use and occupation of land, "the right to choose" how the land can be used, subject to the limitation described above, and the "inescapable economic component" of aboriginal title (para. 166). With respect to the exclusivity aspect of aboriginal title, the notion of priority entails:
that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflect the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their lands (e.g. licensing fees) be somewhat reduced (para. 167).
24. Because aboriginal title entails the right of the First Nation to choose the uses of its land, the Court added that any infringement of aboriginal title, at minimum, requires consultation:
[T]he fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified...The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title....the minimum acceptable standard is consultation, [which] must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands (emphasis added, para. 168).
25. The Court further added that the economic aspect of aboriginal title requires compensation as justification of an infringement:
In keeping with the duty of honor and good faith of the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated (para. 169).
26. The Court's judgment in Delgamuukw makes it clear that justification will always require consultation and, ordinarily, compensation for any infringement of an aboriginal right.
27. This judgment puts to rest the issue of the ability of the provinces to extinguish aboriginal rights prior to the Constitution Act, 1982, when section 35 constitutionalized "aboriginal and treaty rights" in Canada. The Court held that from Confederation to April 17, 1982, only the federal government retained jurisdiction to extinguish aboriginal rights through section 91(24) of the British North America Act, which grants the federal government jurisdiction to legislate in relation to "Indians and Lands Reserved for Indians". As such, the provinces have not possessed the jurisdiction to extinguish aboriginal rights held by First Nations:
[A]lthough on surrender of aboriginal title, the province would take absolute title, jurisdiction to accept surrenders lies with the federal government. The same can be said of extinguishment - although on extinguishment of aboriginal title, the province would take complete title to the land, the jurisdiction to extinguish lies with the federal government (emphasis added; para. 175).
28. Further, the Court found that provincial governments do not have the jurisdiction to enact laws specifically in relation to aboriginal rights, including aboriginal title.
29. In its conclusion, the Court encouraged balanced negotiation as a mode of settling the issue of aboriginal title. Moreover, the Court placed a positive duty upon the Crown with respect to negotiating settlements:
the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith (para. 186).
30. The Delgamuukw case has enunciated essential first principles relating to aboriginal jurisprudence. The Court placed oral history on an equal footing with historical documentation and underscored the value of oral history as an independent source of proof. Further, the Court affirmed that aboriginal title is a general interest in land beyond site specific, activity based rights. Aboriginal title has an economic dimension which includes mineral and other resource interests. Proof of aboriginal title will be based on occupation of traditional territory prior to the assertion of European sovereignty (in British Columbia, 1846) and involves exclusive occupation, although such exclusive occupation may be shared with other aboriginal people.
31. The Court affirmed categorically that aboriginal title is a right entrenched and protected by s. 35 of the Constitution Act, 1982. Further, it reasoned that infringement of aboriginal title might be justified according to the tests set out in Sparrow, as modified in Gladstone. However, the Court stated that the execution of the Crown's fiduciary duty with respect to aboriginal title must recognize its "inescapable economic component" and requires that the Crown accommodate the participation of aboriginal peoples in the development of resources in British Columbia. The Court also affirmed the Crown's obligation to consult aboriginal peoples with respect to their lands, reasoning that in some cases full consent of aboriginal peoples will be required in relation to resource use on traditional lands. In addition to the requirements of consultation and, in some cases, consent, the Court underscored that in keeping with the Crown's duty of honour and good faith, fair compensation to First Nations whose rights have been infringed will ordinarily be required.
32. Finally, the Court found that provincial laws of general application cannot extinguish aboriginal rights. The Province does not have the constitutional capacity or jurisdiction to legislate specifically in relation to aboriginal title or other aboriginal rights.
This paper was prepared by Maria A. Morellato of Blake, Cassels & Graydon, for Continuing Legal Education course materials Aboriginal Title Update, March 1998.
TABLE OF CONTENTS
II. LEGAL INDICIA OF ABORIGINAL TITLE PRIOR TO DELGAMUUKW: SOME FIRST PRINCIPLES
A. Nature of Aboriginal Title as a Legal Interest in Land
B. The Nature and Scope of Aboriginal Title as Articulated by the Supreme Court of Canada in Delgamuukw
C. Aboriginal Title as More Than the Sum of Its Parts
III. APPLYING THE JUSTIFICATION ANALYSIS TO CROWN LAND USE AND RESOURCE DEVELOPMENT
A. The Infringement Analysis and the Halfway Case
1. Is the Infringement Reasonable?
2. Undue Hardship
3. The Preferred Means of Exercising the Right
4. Concluding Comments on Infringement
1. Is there a valid Legislative Objective?
2. Has the Crown Fulfilled its Fiduciary Obligation?
3. Application of the Justification Analysis in the Halfway Case
4. The Priority Given to Halfway's Rights
5. Whether There Was Minimal Infringement of Halfway's Rights
6. Duty to Consult
C. Nunavut Tanngavik v. Canada
D. The Cheslatta Case
Canadian jurisprudence on aboriginal title, while still in its infancy, has developed significantly in the last 15 years, particulary in light of very recent cases such as Delgamuukw et al. v. The Queen (1997), 153 D.L.R. (4th) 193, R. v. Van der Peet,  2 S.C.R. 507, R. v. Gladstone,  2 S.C.R. 723, R. v. Adams,  3 S.C.R. 101, and R. v. Cotê,  3 S.C.R. 139, each of which have added much substance to legal discourse on the subject. With a view to clarifying the current status of the law, this paper embodies an analytical review of these and other leading cases which addresses the nature and scope of aboriginal title within our Canadian constitutional structure.
Well established case authorities will be reviewed along with recent jurisprudence with a view to identifying emerging principles and analytical approaches which lend substantive content to aboriginal title as a legal construct and as an enforceable human right in the contemporary marketplace. Such principles inform not only the legal content of aboriginal title, but how its existence can be reconciled with the Crown sovereignty as well as third party interests in land and resources. Further, the Crown’s fiduciary obligation to accommodate the existence of aboriginal land rights and to justify the infringement of these rights will be addressed within the specific context of resource development on aboriginal lands.
In Guerin v. The Queen,  2 S.C.R. 335, Dickson J. (as he then was) described aboriginal title as "a unique interest in land" (p. 339). He cautioned, however, against defining aboriginal title by applying the "somewhat inappropriate terminology drawn from general property law," and characterized aboriginal title in the following manner:
Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of surrendering Indians.(emphasis added) (Guerin, supra, at p. 339)
In describing aboriginal title as a "unique interest in land," Mr. Justice Dickson clarified any previous confusion which may have arisen from judicial characterizations of Indian title as "a personal usufructuary right" (see for example Calder v. The Attorney General of Canada (1973), 34 D.L.R. (3rd) 145 and Smith v. The Queen,  1 S.C.R. 554). Guerin established that there is indeed a proprietary aspect to aboriginal title.
Dickson J.’s analysis in Guerin found its genesis in Calder. In Calder, the Supreme Court of Canada recognized that the occupation of traditional lands by an aboriginal society gave rise to an unique form of title in land which arose independent of a treaty, legislation or executive order. Mr. Justice Judson reasoned as follows:
Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a `personal or usufructuary right.’ What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and this right has never been lawfully extinguished. (Calder, supra, at p. 156)
Along a similar vein, in the same decision Mr. Justice Hall reasoned that possession of tribal lands was in itself proof of "ownership":
In enumerating the indicia of ownership, the trial Judge overlooked that possession is of itself proof of ownership. Prima facie, therefore, the Nishgas are the owners of the lands that have been in their possession from time immemorial. (Calder, supra, at pp. 189-90)
Mr. Justice Hall’s analysis in Calder focussed on possession of tribal territories by aboriginal societies as an essential criterion to be considered in assessing the existence of aboriginal title. This analytical focus on possession foreshadowed the legal test for proving aboriginal title which was established almost 25 years later by the Supreme Court of Canada in the Delgamuukw case wherein Chief Justice Lamer identified aboriginal occupation of traditional tribal territory prior to the assertion of British sovereignty as a central criterion of proof.
It is noteworthy that in Calder, Mr. Justice Hall also acknowledged the decisive impact of the 19th century on aboriginal rights decisions of the United States Supreme Court. He considered at length the reasoning of the Marshall Court and characterized its decision in Johnson v. M’Intosh (1823), 8 Wheaton 543, 21 U.S. 240, as the "locus classicus" of principles governing aboriginal title (pp. 573-574). It was in this decision that Chief Justice Marshall expressly stated that the original inhabitants of North America had a legal and just claim to their traditional lands.
Similarly, in Roberts v. Canada (1989), 57 D.L.R. (4th) 197, Madam Justice Wilson, speaking for a majority of the Supreme Court of Canada, reasoned:
In Calder v. A.G.B.C. this court recognized aboriginal title as the legal right derived from the Indians’ historic occupation and possession of their tribal lands. As Dickson J. (as he then was) pointed out in Guerin, aboriginal title pre-dated colonization by the British and survived British claims of sovereignty. The Indians’ right of occupation and possession continued as a "burden on the radical or final title of the sovereign". (emphasis added) (Roberts, supra, at p. 131)
The significance of this passage is found not only in its affirmation of aboriginal title as a pre-existing right which includes both occupation and possession of land, but, as well, in its depiction of aboriginal title as one which overlaps, encumbers, and therefore burdens the radical title of the Crown. In this regard, it is important to understand that while fee simple ownership of land is also burdened by the radical title of the Crown, aboriginal title can be distinguished in that, unlike fee simple ownership, it has been given constitutional status and is based on pre-contact occupancy and use.
The authorities cited above define aboriginal title consistently as an independent legal right and as an unique interest in land which both pre-dated and survived the assertion of British sovereignty. It is this essential premise which guided the Supreme Court of Canada in subsequent cases and which lies at the heart of the constitutional protection which embraces aboriginal title today.
In Paul v. Canadian Pacific Ltd.,  2 S.C.R. 654, 53 D.L.R. (4th) 487, the Supreme Court of Canada once again affirmed that aboriginal title is a legal interest in land and further reasoned that this legal interest went beyond the right to simply enjoy and occupy traditional lands.
The inescapable conclusion from the court’s analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy, although, as the Chief Justice pointed out in Guerin, it is difficult to describe what more in traditional property law terminology. (emphasis added) (Paul, supra, at p. 503)
The "inescapable conclusion" that aboriginal title comprises "more than the right to enjoyment and occupancy" led eventually to the recent conclusion in Delgamuukw that aboriginal title includes rights of possession and the attendant right against trespass or non-consensual use of traditional lands. This, of course, is completely consistent with the express statements by the Supreme Court of Canada in Guerin and Roberts that aboriginal title comprises rights of both occupancy and possession. What confounds the analysis somewhat, however, is the sui generis nature of aboriginal title.
The distinction drawn by our courts between aboriginal title and British or Western European notions of property law or ownership underscores the challenge to more precisely and accurately give effect to aboriginal title as an enforceable right within our present day land tenure system. This challenge was squarely faced by the Supreme Court of Canada in Delgamuukw. However, the challenge is also currently faced in a very real and palpable way at treaty tables around British Columbia.
The recent Van Der Peet decision provides further insight on the breadth and depth of aboriginal title as currently understood by our highest court. In that decision the Supreme Court of Canada adopted Mr. Justice Judson’s analysis in Calder and concluded as follows:
. . . Both aboriginal title and aboriginal rights arise from the existence of distinctive aboriginal communities occupying `the land as their forefathers had done for centuries.’
The basis for aboriginal title articulated in Calder, supra was affirmed in Guerin. . . The decision in Guerin turned on the question of the nature and extent of the Crown’s fiduciary obligation to aboriginal peoples; because, however, Dickson J. based that fiduciary relationship, at p. 376, in the `concept of aboriginal, native or Indian title,’ he had occasion to consider the question of the existence of aboriginal title. In holding that such title existed, he relied on Calder, supra, for the proposition that `aboriginal title as a legal right derived from the Indians’ historic occupation and possession of their tribal lands.’ (Lamer C.J.C.’s emphasis) (Van der Peet v. R. at paras. 33-34)
Once again, the Court defined aboriginal title as the right to possession and occupation of traditional tribal land. The Court, however, went further and expressly referred to the Marshall Court Decisions, stating that their relevance arises from their articulation of general principles (para. 35). Specifically, the Court referred to the cases of Johnson and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). A close examination of these two cases provides greater insight on the scope of aboriginal title.
The reasoning in Johnson clearly contemplates that First Nations retained possession of their lands following discovery and, moreover, that such possession did not amount to site-specific activities such as hunting and fishing but, rather, included the right to utilize their traditional lands according to their own discretion and needs. Chief Justice Marshall reasoned that the original inhabitants of North America:
. . . were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it and to use it according to their own discretion. (emphasis added) (Johnson, supra, at pp. 573-574)
This quotation of the Marshall Court was adopted by Dickson J. in Guerin at p. 336 and, as noted above, was also cited by Mr. Justice Hall in Calder.
The Marshall Court acknowledged a separate aboriginal system of land tenure which pre-dated European contact and affirmed the legal right to the possession and use of tribal lands at the discretion of the Cherokee. As such, aboriginal title was seen by the Marshall Court as encompassing the right to choose how traditional lands are to be used and is not limited to a finite bundle of traditional practices which arose in pre-contact times (such as hunting or fishing at specific locations). This was one of the key issues argued by the Appellants in Delgamuukw. The Crown stated that aboriginal rights, including aboriginal title, are activity based while First Nations asserted that their traditional territory belongs to them for all purposes, not just those specific activities which may have been exhibited by their ancestors prior to European contact. The Crown focused, it seems, on activities or practices prior to European contact; First Nations focused on their territorial identity and their central relationship to the land as reflected in their historic use and possession of it. The Supreme Court of Canada in Delgamuukw essentially adopted the Marshall Court approach by concluding that aboriginal title was a right to the land itself and was not limited to traditional practices or activities; however, while the Supreme Court found that there was a communal right to choose how aboriginal title lands might be used, and while it significantly expanded the scope of aboriginal title as it was previously recognized by the Crown, the Court did place inherent limits on what land use choices could be made in relation to such lands. These limits relate essentially to preservation of the aboriginal land base and are addressed in greater detail later in this paper.
In Delgamuukw, the Court concluded that aboriginal title could be summarized in two propositions as follows:
. . . first, that aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures; and second, that those protected uses must not be irreconcilable with the nature of the group’s attachment to that land. (Delgamuukw, at para. 117)
The first proposition makes it clear that a First Nation may develop land use plans and resource development plans over their traditional territories that are not limited to traditional activities or practices such as hunting, fishing and trapping. Indeed, the Court expanded on this principle within the judgment by confirming its reasoning in cases such as Guerin and Paul that aboriginal title embodies a legal interest in land which is more than the right to enjoyment and occupancy. The Court expressly stated that aboriginal title embraces a right to the land itself including the right to exploit resources. Consider the following extracts from the decision:
. . . On the basis of Guerin, aboriginal title also encompass mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands. . . (at para. 122)
. . . At the other end of the spectrum [of aboriginal rights which are recognized and affirmed by s. 35(1)], there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself. . . (at para. 138)
. . . aboriginal title encompasses within it a right to choose to what ends a piece of land can be put. The aboriginal right to fish for food, by contrast, does not contain within it the same discretionary component. This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. . . (at para. 168)
. . . aboriginal title, unlike the aboriginal right to fish for food, has an inescapably economic aspect, particularly when one takes into account the modern uses to which lands held pursuant to aboriginal title can be put. . . (at para. 169)
Notwithstanding the above, the scope of aboriginal title as an interest in land, while both broad and profound, is not absolute. The Court stated that there are certain inherent limits to aboriginal title. However, it is critical to understand that the inherent limits are premised on the special relationship of aboriginal peoples to their traditional lands and, moreover, on the protection and continuation of that relationship. In this light, the limits placed on aboriginal title are perhaps best described as parameters which are intended to maintain and ensure the continuation of the aboriginal land base of a given First Nations people.
Consider the following passages from the Delgamuukw decision which, far from restricting the ability and freedom of First Nations people to utilize their traditional territories, clarified that inherent limits exist to ensure that modern and economic uses can be made of traditional lands both today and 1,000 years from today:
. . . However, the law of aboriginal title does not only seek to determine the historic rights of aboriginal peoples to land; it also seeks to afford legal protection to prior occupation in the present-day. Implicit in the protection of historic patterns of occupation is a recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time. (para. 126)
I develop this point below with respect to the test for aboriginal title. The relevance of the continuity of the relationship of an aboriginal community with its land here is that it applies not only to the past, but to the future as well. That relationship should not be prevented from continuing into the future. As a result, uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title. (para. 127)
Accordingly, in my view, lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place. As discussed below, one of the critical elements in the determination of whether a particular aboriginal group has aboriginal title to certain lands is the matter of the occupancy of those lands. Occupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group. If lands are so occupied, there will exist a special bond between the group and the land in question such that the land will be part of the definition of the group’s distinctive culture. It seems to me that these elements of aboriginal title create an inherent limitation on the uses to which the land, over which such title exists, may be put. For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot). (para. 128)
The Court then reasoned that aboriginal title has an "inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it" and concluded "the community cannot put the land to uses which would destroy that value" (para. 129).
The Court’s clear statement that aboriginal title embodies a broad variety of choices in relation to land use and resource development coupled with its assertion that the inherent limits on aboriginal title are intended to preserve the continued relationship of First Nations people to the land, clearly indicates that the inherent limits are not meant to stultify or undermine resource development but, rather, are meant simply to prevent the destruction of the aboriginal land base in Canada. This is made quite clear in the Court’s reference to the doctrine of "equitable waste" as a useful analogy in articulating the type of limits placed on aboriginal title:
. . . a useful analogy can be drawn between the limit on aboriginal title and the concept of equitable waste at common law. Under that doctrine, persons who hold a life estate in real property cannot commit "wanton or extravagant acts of destruction" . . . or "ruin the property" . . . This description of the limits imposed by the doctrine of equitable waste capture the kind of limit I have in mind here. (para. 130)
As such, the Court’s reference to "wanton acts of destruction" indicates that First Nations are free and, indeed, entitled to engage in resource development on their traditional territories provided that the land base is not destroyed. It is noteworthy, however, that the Court envisaged the entitlement of First Nations to surrender aboriginal title lands if a community’s wished to use that land in a way not permitted by the continuation of aboriginal title. There is a great flexibility, therefore, in the manner in which such lands may be used, either as aboriginal title lands or, alternatively, as surrendered lands.
The principle in Delgamuukw that aboriginal title is an exclusive right to the land itself which comprises more than the sum of traditional activities or uses of tribal lands is consistent with the view adopted by other Commonwealth Courts. In Mabo v. State of Queensland (No. 2) (1992), 175 C.L.R. 1, for example, the High Court declared that the Meriam People were "entitled as against the whole world to possession, occupation, use and enjoyment" of the land that they held by virtue of their native title. Similarly, the Privy Council in Amodu Tijani v. Secretary, Southern Nigeria,  2 A.C. 399 described aboriginal title as a communal occupation "which may be so complete as to reduce any radical title in the sovereign to one which extends to comparatively limited rights of administrative interference" (Tijani, supra, at pp. 409-410). Our courts’ characterization of aboriginal title has profound implications in relation to whether Crown action or legislation which infringes aboriginal title can be justified.
As suggested above, the sui generis nature of aboriginal title and the inherent limits imposed by the Supreme Court of Canada in Delgamuukw do not weaken the nature, breadth or depth of this land interest. Far from diminishing the scope of aboriginal title, the following unique attributes highlight its significance and strength:
(1) aboriginal title is inalienable except to the Crown; this protects against the erosion of the Indian land base to "ensure that Indians are not dispossessed of their entitlements" (see Guerin, Delgamuukw, and Mitchell v. Sandy Bay,  S.C.R. 85 at p. 133);
(2) aboriginal title is a collective right, shared by all members of the community, based on historical occupancy prior to the assertion of European sovereignty; no other type of land interest is based on such history and community use (see Guerin, Delgamuukw);
(3) aboriginal title as an aboriginal right is now constitutionally protected and entrenched in Section 35(1) of the Constitution Act, 1982 such that aboriginal title which existed prior to 1982 can no longer be extinguished and any further infringement of aboriginal title must now be justified by the Crown (Delgamuukw, at para. 133).
In considering how resource development on traditional tribal territory may be addressed by the Courts in the future, four fundamental principles must be kept in mind.
First, as clearly stated by the Supreme Court in Delgamuukw, aboriginal title constitutes an exclusive right within the meaning of s. 35(1) of the Constitution Act, 1982 (para. 133).
Second, as reasoned by the Supreme Court in Van Der Peet, any analysis of s. 35 must take place in light of the general principles applicable to the legal relationship between the Crown and aboriginal peoples; these principles include the fiduciary obligation of the Crown and the tenet that s. 35 should be given a generous and liberal interpretation in favour of aboriginal peoples, as should other statutory provisions protecting the interests of aboriginal peoples, such that any doubt or ambiguity must be resolved in favour of aboriginal peoples (Van der Peet, supra at paras. 23-25).
Third, the substantive rights which fall within the meaning of s. 35 must be defined in light of the purpose behind that section. In Van Der Peet, the Supreme Court of Canada defined this purpose as follows: "the fact that aboriginals lived on the land in distinctive societies (prior to white contact) with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown." The Court explicitly reasoned that the aboriginal rights "recognized and affirmed by s. 35(1) must be directed towards a reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown" (Van der Peet, supra at para. 31).
Fourth, as set out by the Supreme Court of Canada in Sparrow and reiterated in Delgamuukw and Gladstone, any infringement of an aboriginal right must be justified. Simply put, in the absence of treaty negotiations or other agreements, the justification analysis becomes the primary mechanism through which aboriginal title can be reconciled with the assertion of British sovereignty. The test for determining the infringement of treaty or aboriginal rights is set out in these cases.
The onus of establishing an infringement lies with the aboriginal group claiming that a right has been infringed. However, as articulated in R. v. Sampson (1995), 16 B.C.L.R. (3rd) 226 by the British Columbia Court of Appeal, this onus is not a heavy one. In the writer’s view, most infringements will likely be self-evident where the Crown permits activity on aboriginal title lands without the consent of the First Nation in question. This appears to have been implicitly understood by the Court in Delgamuukw in that it only addresses the issue of justification and does not deal with the issue of infringement at all, thereby suggesting that where aboriginal title has not been recognized and use is made of the land without the consent of the First Nation in question, infringement has, indeed, occurred.
Very recently, the infringement analysis was applied within the context of the issuance of a forest cutting permit. In the Halfway River First Nation v. British Columbia (Ministry of Forests),  4 C.N.L.R. 45 ("Halfway"), the Petitioners asserted that the area affected by the cutting permit in question, although not within their reserve lands, was within their traditional territory and was used for hunting, gathering plants for food and medicinal purposes, and spiritual ceremonies. Canadian Forest Products Ltd. ("Canfor") had applied for and had obtained a cutting permit within this traditional territory. The petitioners brought judicial review proceedings to quash the approval of the cutting permit; they did so successfully, although the decision is currently under appeal.
It is important to note that because Halfway was decided prior to the Supreme Court of Canada decision in Delgamuukw, it is arguable that the infringement test set out in Sparrow is inapplicable as it relates to aboriginal title lands. Indeed, it appears Halfway was asserting the prima facie infringement of activity-based rights such as hunting rather than the infringement of aboriginal title itself. In any event, given the Supreme Court of Canada’s view that aboriginal title comprises the exclusive right over traditional territory, it follows that unauthorized use of traditional territory constitutes unreasonable infringement. Nonetheless, the Halfway case is instructive, in the writer’s view, as it relates to the infringement of activity-based or site-specific aboriginal rights such a hunting, fishing, trapping or use of land for commercial purposes.
The Court in Halfway considered the following factors as outlined in Sparrow:
(1) is the infringement reasonable?
(2) is there undue hardship?
(3) has the First Nation been denied its preferred means of exercising the right?
The Ministry of Forests (MOF) and Canfor argued that the cutting permit was a reasonable limit on Halfway’s rights as only a very small portion of Halfway’s traditional territory (the Tusdzuh area) was approved for logging, leaving a vast area where Halfway could exercise their traditional rights.
The Court found that this argument ignored the aboriginal perspective referred to in cases such as Sparrow, reasoning that to Halfway the Tusdzuh region is one of the last unspoiled areas of wilderness where Halfway could exercise their traditional way of life. Specifically, the Court reasoned:
Logging even a limited area of the Tusdzuh would irrevocably change its character. In Derickson ... the Court recognized that the impacts of logging were felt beyond simply the logged area.
The area which will be affected by logging also includes a site, proposed roads, the lands adjacent to these roads, and the lands adjacent to the cut blocks.
While the onus is on the Petitioners to establish infringement, it is worth noting that there is no persuasive evidence to suggest that other areas do not exist which Canfor could log in place of CP212 (the cutting permit) to avoid interfering with aboriginal rights.
(Halfway, supra, at paras. 105-108)
The Court thereby indicates that a factor in determining the reasonableness of the infringement is whether resource development by a third party could have taken place where aboriginal rights would not be infringed.
The Court reasoned that in order to establish undue hardship, one must show more than mere inconvenience. The Court then concluded that the evidence before it did show undue hardship in that members of Halfway depended on hunting to feed their families and the proximity of the Tusdzuh area to the reserve allowed Halfway members easy access to quality hunting areas where they could harvest game.
It is significant that while MOF replied that there were thousands of other acres, including lands close to the reserve, where logging did not take place and where Halfway members could readily hunt, the Court rejected this argument on the basis that there was "no persuasive evidence in this regard" (Halfway, supra, at para. 112).
The Court found that the preferred means of Halfway to exercise their rights to hunt, trap and fish was to do so in an unspoiled wilderness in close proximity to the reserve lands. In this specific sense, the approval of the cutting permit denied Halfway its preferred means of exercising its rights.
After examining the evidence in the manner outlined above, the Court concluded that Halfway’s aboriginal title had been interfered with in such a manner that the limitation on their right was not reasonable, caused undue hardship and denied Halfway the preferred means of exercising their rights.
It remains to be seen if and how courts will deal with the infringement analysis as it relates to aboriginal title lands. As with the justification analysis in Sparrow, it appears that the infringement branch of the legal analysis must be modified to reflect the content of aboriginal title as an exclusive right to the land itself. Given the Court’s statement that "there is always a duty of consultation," it appears this modification of the infringement test will be a simple one, namely, if any crown activity occurs on aboriginal title lands without the consent of the First Nation involved, infringement will have occurred.
The Court in Delgamuukw expressly dealt with the justification analysis and directed that once an infringement has been found, the onus shifts to the Crown to justify the infringement. To determine whether the infringement can be justified, Delgamuukw established the following justification test in relation to the infringement of aboriginal title:
(1) Is the infringement in furtherance of a valid legislative objective that is substantial and compelling?
(2)If there is a substantial and compelling legislative objective, has the honour of the Crown been upheld in light of the Crown’s fiduciary obligation? This in turn is determined by asking:
(a) Whether the process by which the Crown allocated the resource and the allocation of the resource reflects the prior interest of the holders of aboriginal title;
(b) Has there been as little infringement as possible to effect the desired result?
(c) Has compensation been paid?
(d) Has the aboriginal group been consulted?
(e) Has the Crown bargained in good faith?
There may be other questions, although Delgamuukw does not set out an exhaustive list.
The content of what constitutes "substantial and compelling legislative objectives" is specifically addressed by the Court in Delgamuukw as follows:
In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that "distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community" (at para. 73). In my opinion, the 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 populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis. (Delgamuukw, supra, at para. 165)
With regard to the question of whether or not the Crown has met its fiduciary obligation in recognizing and accommodating the existence of aboriginal title, the Court underscored that the allocation of the resource in question must reflect the prior interest of the holders of aboriginal title in land. The court specifically reasoned that by analogy this would include, for example, that the government accommodate the participation of aboriginal peoples in the development of the resources of British Columbia:
The exclusive nature of aboriginal title is relevant to the degree of scrutiny of the infringing measure or action. For example, if the Crown’s fiduciary duty requires that aboriginal title be given priority, then it is the altered approach to priority that I laid down in Gladstone which should apply. What is required is that the government demonstrate (at para.62) "both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest" of the holders of aboriginal title in the land. By analogy with Gladstone, this might entail, for example, that governments accommodate the participation of aboriginal peoples in the development of the resources of British Columbia, that the conferral of fee simples for agriculture, and of leases and licences for forestry and mining reflet the prior occupation of aboriginal title lands, that economic barriers to aboriginal uses of their lands (e.g., licensing fees be somewhat reduced. This list is illustrative and not exhaustive. This is an issue that may involve an assessment of the various interests at stake in the resources in question. No doubt, there will be difficulties in determining the precise value of the aboriginal interest in the land and any grants, leases or licences given for its exploitation. These difficult economic considerations obviously cannot be solved here (Delgamuukw, at para. 167)
On the question of consultation, the Court stated that there is "always a duty of consultation" and reasoned as follows:
The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands. (Delgamuukw, at para. 168)
The Court specifically characterized those cases where there is only a duty to discuss important Crown decisions that will be taken with respect to aboriginal title lands as "rare"; further, such consultation must be conducted "in good faith" with "the intention of substantially addressing the concerns of aboriginal peoples whose lands are at issue" (para. 168). The Court goes so far as to state that some cases might even require the "full consent of an aboriginal nation" before Crown action can be justified, particularly where provinces enact hunting and fishing in relation to aboriginal lands (Delgamuukw, para. 168).
The Court expands our current understanding of how infringement can be justified by reasoning that compensation will ordinarily be required where an infringement has occurred:
. . . aboriginal title, unlike the aboriginal right to fish for food, has an inescapably economic aspect, particularly when one takes into account the modern uses to which lands held pursuant to aboriginal title can be put. The economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well, a possibility suggested in Sparrow and which I repeated in Gladstone. Indeed, compensation for breaches of fiduciary duty are a well-established part of the landscape of aboriginal rights: Guerin. In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed. The amount of compensation payable will vary with the nature of the particular aboriginal title affected and with the nature and severity of the infringement and the extent to which aboriginal interests were accommodated. (emphasis added) (Delgamuukw, at para. 169)
As such, it is clear that in the usual course, infringement cannot be justified without compensation for breach of aboriginal title.
While the Halfway case was decided prior to the decision of the Supreme Court of Canada in Delgamuukw in December of 1997, Halfway applies the principles of the justification analysis in a way which is consistent with the Supreme Court of Canada’s analysis in Delgamuukw. Accordingly, the reasons of the Court are instructive.
In Halfway, the Court suggested that there was a valid legislative objective behind the issuance of the cutting permit to Canfor, reasoning that if the objective was to enhance the economy of British Columbia in the harvesting of its forest resources, this likely qualified as such. However, the Court found that the second branch of the justification analysis was not satisfied.
In concluding that the Crown’s actions could not be justified in granting the cutting permit in question, Madam Justice Dorgan focussed on the Crown’s fiduciary relationship with Halfway: whether priority was given to their aboriginal rights; whether there was minimal infringement; and whether there was proper consultation.
The Court in Halfway reasoned that the approval of the cutting permit in question appeared to have given Canfor priority over Halfway. Canfor and MOF argued that this was not the case, and that had evidence of traditional use been provided by Halfway, logging would not have been approved for the areas to which this evidence related. The Court rejected this argument, reasoning that there was a "duty on MOF to inform itself of Halfway’s traditional uses of the Tusdzuh area..." (Halfway, supra, at para. 130). Clearly, the Court placed the burden of establishing an actual accommodation of the aboriginal right upon the Crown. This is consistent with the Supreme Court of Canada’s direction in Sparrow that the Crown bears the burden of justifying its infringement.
The Court considered whether there may have been other areas available to Canfor where Halfway did not exercise its traditional rights. Notwithstanding that Canfor argued that the block scheduled to be logged represented only a tiny percentage of the Tusdzuh area, Dorgan J. referred to the statement by the Court in R. v. Nikal,  1 S.C.R. 1013, that "so long as the infringement was one which in the context of the circumstances presented could reasonably be considered to be as minimal as possible then it will meet the justification test" (Nikal, supra, at p. 118). Dorgan J. concluded that the infringement in question was not as minimal as possible.
The Petitioners in Halfway submitted that the fiduciary relationship imposed an obligation on the Provincial Crown to consult with the First Nations before taking any action which might impact on their aboriginal or treaty rights. In concluding that proper consultation had not taken place, the Court considered the decision in R. v. Jack (1995), 16 B.C.L.R. (3rd) 201 (C.A.) and R. v. Noel,  4 C.N.L.R. 78. In Jack, the Court held that the duty on the Department of Fisheries and Oceans to consult with aboriginal peoples when establishing conservation measures included a duty to provide the Indian Band with full information on the conservation measures and their effect on the Band, as well as a duty to fully inform itself of the fishing practices of the Band and the Band’s views of the conservation measures. In applying the Jack decision, Dorgan J. reasoned as follows:
In the present case, this translates into a duty of MOF to inform itself of Halfway’s traditional uses of the Tusdzuh area, without imposing a requirement that there be agreement between Halfway and the Crown on all actions to be taken by the Crown. (Halfway, supra, at para. 130)
It is noteworthy, that Dorgan J.’s conclusion that Halfway’s consent was not necessary, is at least questionable in light of the Supreme Court of Canada reasoning in Delgamuukw that consent will be required in certain cases (para. 168).
Dorgan J. concluded that based on the Jack, Noel and Delgamuukw cases, the Crown had an obligation to undertake reasonable consultation with the First Nations which may be affected by its decision. Dorgan J. further reasoned that in order to properly fulfil this obligation it was necessary for the Crown to fully inform itself about the practices and views of the First Nation in question. She reasoned as follows:
In order for the Crown to consult reasonably, it must fully inform itself of the practices and of the views of the Nation affected. In so doing, it must ensure that the group affected is provided with full information with respect to the proposed legislation or decision and its potential impact on aboriginal rights. (emphasis added) (Halfway, at p. 133)
It is important that the Court rejected the argument of MOF that the duty to consult did not arise until the aboriginal group had established a prima facie infringement. The Court rejected this analysis stating that it would be inconsistent with the cases referred to (such as Sparrow, Jack, Noel and Delgamuukw) and would also be inappropriate given the fiduciary relationship between the Crown and aboriginal people. Accordingly, the Court reasoned that the Crown had an obligation to consult with a First Nation which may be affected by its decision (para. 133).
The Court recognized a corresponding duty on the part of a First Nation to cooperate with the consultation efforts advanced by the Crown. Specifically, Dorgan J. reasoned that in addition to the obligations of MOF to consult with Halfway, there were obligations on Halfway to make reasonable efforts to facilitate discussions with MOF and that these obligations included acting in good faith and reasonably (Halfway, supra, at para. 148).
Dorgan J. concluded that as there was no evidence to suggest that Halfway had refused to participate in the consultation process but rather had requested meetings on a number of occasions, there was no reason to conclude that it had not acted reasonably. In the Court’s view, Halfway sought the establishment of a consultation process acceptable to both parties and this was to be distinguished from the case in Ryan v. Shultz (January 25, 1994) Smithers Registry, No. 7855, where the Court found that the First Nation had not acted in good faith when it refused to participate in the consultation process until a co-management agreement had been arranged on its own terms.
The Halfway decision is significant in that it clearly places an obligation on the Crown to ensure that it is fully informed of the specific aboriginal interests at stake and that it has fully consulted with a particular First Nation before issuing a permit which affects resource development on traditional aboriginal lands. Because the Court found that the Crown: (i) had not adequately consulted with Halfway prior to approving the cutting permit; (ii) failed to fully inform itself in respect of aboriginal treaty rights in the "Tusdzuh region", including the impact the approval of a cutting permit would have on these rights; and (iii) had failed to provide Halfway with information relating to the cutting approval, it concluded that the infringement of aboriginal rights had not been justified.
Finally, it is also noteworthy that this case raises administrative law issues which will inform the validity of permits granted by the Crown relating to resource development on traditional aboriginal lands. The Court found that the Crown had violated principles of procedural fairness by failing to consult Halfway and by failing to provide sufficient notice of the impending approval of the cutting permit. In addition, the Court found that the Crown officer issuing the permit had prejudged the issue of approval and had fettered his discretion by applying what was referred to as an "inflexible policy" of refusing to halt logging. Of particular note is the Trial Judge’s conclusion that the official issuing the licence fettered his discretion "by treating the Government policy of not halting development as a given, and by simply following the direction of the Minister of Forests not to halt development" (Halfway, supra, at paras. 33-35).
The reasoning of the Court in Nunavut Tanngavik v. Canada (14 July 1997) Vancouver No. T-872-97 (F.C., T.D.) is consistent with the reasoning in Halfway on the issue of consultation. Decided prior to the Supreme Court of Canada decision in Delgamuukw, the Court considered a ratified land claims agreement ("Agreement") and whether the terms of the Agreement were breached by the Minister of Fisheries and Oceans in making a decision regarding fish quotas in 1997.
The Court found that the Minister infringed upon the authority of the Nunavut Wildlife Management Board (NWMB) authority to establish levels of total allowable harvest, and further that the Minister failed to consider the advice of the NWMB in making his decision. Further, the Court found that the Minister failed to give proper consideration to the principles which were articulated in the Agreement.
In concluding that the Minister infringed the NWMB’s sole authority to establish the levels of total allowable harvest, the Court reasoned that the Minister breached his obligations by not advising the NWMB of a debate within the Department of Fisheries and Oceans as to whether the Total Allowable Catch (TAC) should be increased. Moreover, the Court found that the NWMB should have been consulted and advised of the strongly held view of the Minister that the Canadian share of the TAC should increase. The Court further stated that the NWMB had no real opportunity to express a precise position on this view and this was an opportunity which should have been provided to them (para. 38).
The Court provided that full, careful and conscientious consideration must be given to advice or recommendations provided by the NWMB. This required that "if a given position is not accepted by the Government for implementation, at the very least, out of respect, an explanation for doing so should be provided to the NWMB" (para. 55). Finally, the Court concluded with the finding that "consultation and consideration must mean more than simply hearing. It must include listening as well" (para. 57).
Also informing the Court’s conclusion that the Minister had not properly consulted with the NWMB was the finding that there was ambiguity and doubt concerning whether the Minister intended that southern, non-aboriginal fishers should have access to fish in the Nunavut Settlement Area. The Court reasoned that this doubt should not have arisen given the requirements for consultation and consideration found in the Agreement.
As a result, Mr. Justice Campbell quashed the decision of the Minister respecting fish quotas on the basis that the decision was contrary to law and referred the matter to the present Minister for reconsideration in accordance with his reasons.
The Nunavut decision is instructive in that its reasoning may easily be imported into the justification analysis where an aboriginal right has been infringed. While it is important to appreciate that the type of consultation obligations which arose in Nunavut arose from the language of the NSA itself, it is equally instructive that the consultation provisions in that agreement were not onerous: they simply required the Government to seek advice and recommendations from the NWMB with respect to wildlife management decisions, and to consider such advice in making decisions which affect certain marine areas. There was no directive or obligation in the Agreement which required the Crown or the Minister to follow the advice given, only to carefully consider it.
Very recently, the Chief Justice of the Supreme Court of British Columbia issued a decision in Council of the Cheslatta Carrier Nation v. Minister of Energy, Mines and Petroleum Resources and Huckleberry Mines Ltd. et al. (January 29, 1998) Vancouver Registry No. A954336, which further underscored the necessity for consultation in circumstances where aboriginal rights are affected. The case concerned petitions under the Judicial Review Procedure Act in respect of decisions made by the Minister of Energy, Mines and Petroleum Resources and the Minister of Environment, Lands and Parks pursuant to the Environmental Assessment Act, S.B.C. 1994 (now R.S.B.C. 1996, c. 119). Specifically, the petitions addressed an application by the Respondent Huckleberry Mines Ltd. for review and approval of a project to establish a copper mine approximately 86 kilometres southwest of Houston, British Columbia ("Project").
The decision in the Cheslatta case, unlike that in Halfway and Nunavut, was made after the Supreme Court of Canada released its decision in the Delgamuukw case. The Court in Cheslatta reasoned that the duty to consult aboriginal persons arose both at common law and through particular provisions in the Environmental Assessment Act. Referring to R. v. Sampson, supra, the Court reasoned that the question of whether or not the duty to consult has been discharged will depend on the facts and circumstances of each particular case but further stated that "it is equally clear that consultation means `meaningful consultation’" (at para. 48).
In referring to the Sampson case, the Court ruled that meaningful consultation involved not only the duty to discuss relevant issues with First Nations but also involved the duty to be informed of the issues in question and to take seriously the objections or concerns of the First Nations people. Like Dorgan J. in the Halfway case, the Chief Justice referred the reasons of the Court of Appeal in R. v. Jack, supra, at pp. 222-223 that the Crown must "fully inform itself."
The Court found that meaningful consultation did not take place with respect to an environmental issue raised by the First Nations in question concerning wildlife in the area of the Project. Specifically, representatives of the First Nations stated prior to the certification of the Project, that they required certain mapping and further information so they could consider how the project might affect traditional practices such as hunting, trapping, fishing, harvesting vegetables, berries, herbs, food and medicinal plants. First Nations also required these studies so that they could consider the effects of the Project on any spiritual or cultural site, travel corridors, general lodging sites, and other aspects of their lives which were inextricably linked to wildlife issues. The Court found that although this information could have been obtained through terrestrial ecosystem mapping, the identification of vegetation types and wildlife or wildlife capability was never assessed to the satisfaction of the Petitioners. The Court also found that several non-aboriginal members of the Project Committee (which was comprised of members from various government agencies and First Nations, including representatives of the Petitioners), were unsatisfied with the information in this respect; nevertheless, the requisite fish and wildlife habitat mapping did not take place. The Project Committee decided to put off further wildlife considerations until after the Project approval certificate was issued.
The Court concluded that Huckleberry Mines failed to deliver the wildlife information maps requested from them and reasoned that those maps, plus the information which they should have brought forward, would have at least given the Petitioners an opportunity to consider the impact on their lives and their lands and to consider what measures or compensation would be required:
If they had had possessed adequate and requisite wildlife information, the Petitioners could have carefully considered their response and brought any concerns they might have had to the attention of the Project Committee and ultimately the Executive Director. The Executive Director might then have agreed or disagreed with recommendations of the Petitioners within his statutory duties, and the result would have been the same. Such a process, however, would have constituted meaningful consultation (para. 58).
Further, the Chief Justice concluded that the First Nations affected by the proposed Project "are entitled to data sufficient to make a reasonable assessment of the Project’s impact on their people and territories, and the exercise of their rights in those territories."
As in Halfway, the Court recognized that consultation was a "two-way street" and reasoned that it would not countenance affected groups "remaining silent" during the consultation, in hopes of complaining about unaddressed concerns at a later stage of the proceedings. As discussed above, there is a corresponding obligation on First Nations to consult in good faith and to actively participate in consultation opportunities presented to them. (see para. 73)
In the final analysis, the Court declared that the Petitioners had a right to be consulted in a meaningful and timely fashion on the application of any remaining permits, and on the effects of these permits. The Court further ordered that the requisite consultation with the First Nations take place through a new Committee, unless all parties agree that the original Liaison Committee with enhanced powers could fulfil this role. Huckleberry Mines was ordered to produce further wildlife mapping information to the Petitioners.
Cheslatta strongly suggests that in the future, courts will be scrutinizing the adequacy and thoroughness of the information disclosed and exchanged through the consultation process with First Nations. Proper notice of Crown action must be given to First Nations, the Crown must inform itself of the potential impact of its action on aboriginal title, this information must be communicated to First Nations that are affected and First Nations must be heard and given a voice in the decision-making process.
The Cheslatta case deals primarily with consultation. What has not yet been addressed is how the Courts will apply other justification factors in Delgamuukw concerning proper allocation of the resource in question, proper compensation, minimization of the infringement and bargaining in good faith. These are the justification issues with which future cases will likely grapple.
Canadian jurisprudence has now established unequivocally that aboriginal title is a unique interest in the land, including the resources, within traditional aboriginal territory. Further, this legal interest is now protected by our Constitution which invokes the Crown’s fiduciary obligations to protect and enhance the use of these lands for the benefit of aboriginal peoples. The fiduciary obligation of the Crown, which lies at the heart of the justification analysis set out in Delgamuukw, challenges the Crown to develop new relationships with First Nations people and new mechanisms of protecting and accommodating the existence of aboriginal title within our economic, political and social structures. There is no question that the Crown must take a leadership role with pro-active policies which will lead to agreements and treaties with First Nations which recognize and protect aboriginal lands and which delineate how the recognition and protection of these lands may co-exist with the existence of other economic, legal and land based interests.
OSGOODE HALL LAW SCHOOL
TWELFTH ANNUAL ROBARTS LECTURE
March 25, 1998
YORK UNIVERSITY, TORONTO
ROBARTS CENTRE FOR CANADIAN STUDIES
The full lecture is available by downloading the pdf at the bottom of this page.
The arrival of Europeans in North America had a profound impact on the Aboriginal peoples who had been living here for thousands of years. Virtually everything changed: unfamiliar diseases like smallpox ravished the population; the fur trade and European settlement and resource use decimated the wildlife; new technology such as firearms altered Aboriginal economies and tribal relations; Christian evangelism affected spiritual beliefs and values; European imposition of sovereignty and governmental structures weakened, and in some cases replaced, Aboriginal forms of government; and so on.1 But more than anything else, the taking of Aboriginal lands by Europeans has probably had the greatest long-term impact on the Aboriginal peoples.
In some areas of Canada, a degree of consent to this taking was obtained in the form of treaties.2 Elsewhere - especially east of Ontario and in British Columbia - Aboriginal lands were simply seized for incoming settlers.3 These discrepancies reveal both doubt (transparently self-serving) among Europeans about whether the Aboriginal peoples had legal rights to their traditional lands, and unevenness in the way Aboriginal land claims were actually dealt with. But from the beginning of European colonization, there was always some recognition of Aboriginal use and occupation of land. While French acknowledgement of this undeniable reality tended to be revealed more in dayto- day relations with the Aboriginal peoples,4 Britain formally recognized Aboriginal land rights in the Royal Proclamation of 1763.5 That document specifically reserved unceded Aboriginal lands for Aboriginal occupation and use, and stipulated that those lands could only be acquired by the Crown at an
assembly of the Aboriginal people concerned.
While the Royal Proclamation provided a legal basis for the land surrender treaties that followed, the issue of the nature of Aboriginal land rights remained unsettled. Amazingly, that issue was not judicially resolved until December, 1997, when the Supreme Court of Canada. finally produced a legal definition of Aboriginal title in its landmark decision in Delgamuukw v British Columbia.6 That case involved claims by the Gitxsan (also spelled Gitksan) and Wet'suwet'en Nations to ownership and jurisdiction over their traditional territories. encompassing 58,000 square kilometres - an area almost the size of New Brunswick - in northern British Columbia (see the map of the claim area at page ).7 The case resulted in one of the longest and most complex trials in Canadian history, taking 318 days for presentation of the evidence and a further 56 days for legal argument. The trial was conducted in the British Columbia Supreme Court before Chief Justice McEachern, who produced a book-length judgment dismissing the claims.8 The British Columbia Court of Appeal modified some aspects of that decision, and affirmed others.9 On further appeal, the Supreme Court of Canada set aside the Court of Appeal's decision, and ordered a new trial.
Antonio Lamer, the Chief Justice of Canada, delivered the leading judgment.10 While avoiding any decision on the merits of the case, he did outline some important principles to be applied in Aboriginal title litigation. First of all, he specified the title's content, and explained how it can be proved. He then looked at the test for determining when a legislative infringement of Aboriginal title can be justified. Finally, he examined the issue of whether the provinces have authority under the Constitution to extinguish Aboriginal title. But even though self-government was a vital part of the Gitxsan and Wet'suwet'en claims, he refused to address that issue directly. However, there is some indication in his judgment that the Court might look favourably on a claim of self-government in an appropriate future case.
In this lecture, I will examine the principles the Chief Justice laid down in relation to Aboriginal title, and assess the possible impact of his decision on Aboriginal land claims and resource development in Canada. We will see that the decision has far-reaching implications that could lead to the economic and political empowerment of Aboriginal peoples and to a radical restructuring of Canadian federalism.
1. See generally J.R. Miller, Skyscrapers Hide the Heavens.- A History of Indian-White Relations in Canada, rev'd ed. (Toronto: University of Toronto Press, 1989); Olive Patricia Dickason, Canada's First Nations: A History of Founding Peoples from Earliest Years (Toronto: McClelland and Stewart, 1992); Robin Fisher, Contact and Conflict: Indian- European Relations in British Columbia, 1774-1890, 2nd ed. (Vancouver: University of
British Columbia Press, 1992).
2. See Darlene Johnston, The Taking of Indian Lands in Canada.- Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989); Report of the Royal Commission on Aboriginal Peoples (hereinafter RCAP Report), Vol. 1, Looking Forward, Looking Back (Ottawa: Supply and Services Canada, 1996), 119-79.
3. E.g. see Leslie F.S. Upton, Micmacs and Colonists., Indian- White Relations in the Maritimes, 1713-1867 (Vancouver: University of British Columbia Press, 1979); Paul Tennant, Aboriginal Peoples and Politics., The Indian Land Question in British Columbia, 1849-1989 (Vancouver: University of British Columbia Press, 1990).
4. See Brian Slattery, "French Claims in North America 1500-59" (1978) 59 Canadian Historical Review 139; W.J. Eccles, "Sovereignty-Association, 1500-1783" (1984) 65 Canadian Historical Review 475; Cornelius J. Jaenen, "French Sovereignty and Native Nationhood During the French Regime", in J.R. Miller, ed. Sweet Promises. A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991), 19.
5. R.S.C. 1985, App. IL No. 1. See Brian Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of Their Territories (Saskatoon: University of Saskatchewan Native Law Centre, 1979); Jack Stagg, Anglo-Indian Relations in North America to 1763 and an Analysis of the Royal Proclamation of 7 October 1763 (Ottawa: Research Branch, Indian and Northern Affairs Canada, 1981); John Borrows, "Constitutional Law from a First Nation Perspective: Self-Government and the Royal Proclamation" (1994) 28 University of British Columbia Law Review 1.
6. 1 C.N.L.R. 14 (hereinafter Delgamuukw).
7. On appeal, the claimants modified their claim from ownership and jurisdiction to Aboriginal title and self-government: see ibid., at 44-45 (para. 73).
8. Delgamuukw v. British Columbia (1991), 79 D.L.R. (4th) 185.
9. Delgamuukw v. British Columbia (1993), 104 D.L.R. (4th) 470.
10. Cory and Major JJ. concurred with Lamer C.J. La Forest J., L'Heureux-Dube J. concurring, wrote a separate judgment arriving at the same result, but differing somewhat on content and proof of Aboriginal title. McLachlin J. concurred with the Chief Justice, and added that she was "also in substantial agreement with the comments of Justice La Forest": Delgamuukw, supra note 6, at 94 (para. 209). Given that Lamer C.J.'s judgment was concurred in by a majority of the Court, I am going to confine my discussion to his decision.
By Stuart Rush, Q.C.
March 16, 1998
The full paper is available via pdf download at the bottom of this page.
The decision in Delgamuukw1 has greatly expanded the fiduciary obligations of the governments. It has established the Federal Government as the protector of aboriginal title on off-reserve land. It has imposed a duty to accommodate aboriginal title if it is to be infringed upon. It has imposed a duty to consult with respect to infringement of aboriginal title by enactments and measures taken by the governments. It has imposed a duty to negotiate treaty settlements in good faith with Aboriginal Nations.
The Court concluded that in order to give effect to the title which the Aboriginal Nations possessed in their ancestral lands and to spur on settlements, mandatory obligations had to be declared. There had to be a Federal obligation to safeguard off-reserve aboriginal land. The Court saw the need to make it clear to the governments that they had to negotiate with aboriginal people on a fair basis, on a Nation to Nation footing, and to treat Aboriginal Nations as equal partners in the treaty settlement process.
The Supreme Court of Canada sought to remedy the legal inequities by broadly pronouncing principles of Aboriginal title. It articulated a test to prove Aboriginal title. It set out a broad reconciliation process which it mandated (through treaty negotiations) under s. 35(l) to accommodate governmental interference. It directed the Crowns to negotiate treaty settlements and to consult about infringements of Aboriginal title in good faith. The rationale for this is that "we are all here to stay" and accordingly a co-existence must be achieved.
Having set out the principles defining Aboriginal title and its content, the Court expanded
the fiduciary obligations upon the federal and provincial governments in order to govern the
process by which settlements can occur and to give a means of enforcing the principles
which it declared.
 References are to the unreported decision or Delgamuukw v. 77te Queen, December 11, 1997, No. 23799 (S.C.C.)'