The unanimous Supreme Court of Canada’s Tsilhqot’in decision in late June represents an important watershed in Canada’s long and often terrible relationship with the indigenous peoples who were here long before settlers arrived.
For the first time, Aboriginal title has been proven in the courts and protected under s. 35 of the Constitution, which provides that “the existing aboriginal and treaty rights of Aboriginal peoples of Canada are respected and affirmed.” The immediate result – that the Tsilhqot’in people retain Aboriginal title to a significant land base, the rights to govern how those lands are used and to the benefits that flow from them – is a long overdue affirmation of their struggle to maintain their lands, rights and way of life for present and future generations.
The significance of the case goes well beyond British Columbia’s Nemiah Valley. In recognizing Tsilhqot’in title, the Court has put the Crown (federal, provincial and territorial governments) on notice that the political, cultural and economic aspirations of Aboriginal communities must be meaningfully included within Canada’s confederation.
This will have fundamental implications for our future federalism. Undoubtedly, Aboriginal peoples now have greater legal standing and will play a much more central role in determining how their lands and resources may be used.
But the Tsilhqot’in decision also incorporates key environmental and cultural sustainability principles. The Court has recognized that lands and resources are finite, and that the impacts and benefits from developments are not always proportionately shared. If, as former Chief Justice Lamer famously wrote in Delgamuukw in 1997 “we are all here to stay”, there must be limits on what kinds of activities can be permitted if lands and traditional livelihoods are to be maintained for future generations, and reconciliation between Aboriginal peoples and other Canadians is to be achieved.
It is already the law that the Crown must consult and, where appropriate, accommodate the Aboriginal group before it takes actions that might affect their rights. While no rights are ever absolute, Tsilhqot’in places renewed emphasis on the requirements for the Crown to justify its proposed actions. If the Crown contemplates actions that would affect title or other significant Aboriginal rights, it must first either obtain the consent of the Aboriginal group, or be prepared to meet a very high bar to justify any infringement. The Crown must show not only a compelling public purpose, but demonstrate that it has balanced the interests of the affected Aboriginal group with those of other Canadians.
This will not be an easy test to meet. First, the Crown must show that their proposed action goes no further than is required to achieve the public purpose—i.e. it must “minimally affect” rights or title—and the impacts and benefits must be equitable. In other words, just because a government says the action is in the public interest, it doesn’t mean that the impacts or risks to Aboriginal people will be acceptable. Where the impacts on the rights and title of an Aboriginal group are disproportionate to the benefit, the proposed infringement will not be justified.
Second, and most significantly, Tsilhqot’in is clear that Aboriginal title also includes unique and inherent conservation obligations. These obligations are binding on all governments. Crown governments cannot act in ways that would deprive Aboriginal peoples of the benefits of their lands, and Aboriginal governments can only use their lands in ways that respect the needs of future generations.
Aboriginal peoples have long shared the land with Canada, but the relationship has been far too one sided. The Tsilhqot’in decision signals that balance must be restored, and that the law will give priority to maintaining the relationship between Aboriginal peoples and their lands. Implementing the Tsilhqot’in decision will require governments to confront the immutable ecological fact that we are all connected. Crown governments will require new policies and institutions that meaningfully incorporate Aboriginal knowledge and perspectives, and they will be required to share decision-making powers with Aboriginal peoples. This can only lead to better relationships between our peoples, and better stewardship of the lands and resources that we all share.
By Larry Innes