Aboriginal law: proof of a sufficient, continuous and exclusive occupation is necessary to establish an Ancestral title

According to a Supreme Court of Canada judgement, rendered in July 2014, in order to prove the existence of an Aboriginal titre on a given piece of land, the Aboriginal group in question must show the sufficient, continuous and exclusive use of the territory in question. Once Aboriginal title has been established, the Aboriginal community can exercise its right to use and occupy the land for a variety of purposes, including non traditional purposes, provided theses uses can be reconciled with the communal nature of the group’s title (Nation Tsilhqot’in vs. British Columbia, 2014 CSC 44).

THE FACTS

In 1983, the province of British Columbia granted a commercial logging licence on land considered by the Tsilhqot’in people to be part of their traditional territory. The band objected and sought a court declaration in order to prohibit logging on the land and to claim an Aboriginal title to the land in question on behalf of the Tsilhqot’in people.

The Supreme Court of British Columbia held that occupation can be established by showing the regular and exclusive use of sites or territory within the claim area. Choosing to apply said criterion, the Supreme Court of British Columbia concluded that the Tsilhqot’in Nation had succeeded in establishing the existence of an Aboriginal titre.  

In appeal, The British Columbia Court of Appeal chose to rather base its decision on a narrower test requiring proof of a site-specific occupation and intensive use of a definite tract of land, with reasonably defined boundaries, by the Aboriginal group’s ancestors at the time of European sovereignty. The Court of Appeal decided that Aboriginal title had not been demonstrated in the circumstances.

The latter decision was brought before the Supreme Court of Canada by the Tsilhqot’in Nation.

THE SUPREME COURT OF CANADA’S DECISION

After having considered the arguments invoked by both parties, the Supreme Court of Canada established the following principles:

1.    The claimant group bears the burden of establishing Aboriginal title.

2.    Aboriginal title stems from occupation of the land in question; in order to demonstrate occupation, the claimant group must prove the sufficient, continuous and exclusive use of the land by its members.

3.    Occupation sufficient to justify Aboriginal titled is not confined to specific sites of settlement, but rather extends to tracts of land that were regularly used by the group for hunting, fishing or otherwise exploiting resources and over which that group exercised effective control at the time of assertion of European sovereignty. 

4.    The acts necessary to indicate a permanent presence and intention to hold and use the land are dependent on the Aboriginal group’s way of life, as well as the nature of the territory in question.

5.    Continued occupation implies that all evidence of present occupation, provided in order to establish an inference of pre-sovereignty occupation, must be rooted in pre-sovereign times.

6.    In order to demonstrate exclusive occupation, the Aboriginal group must prove its intention and capacity to retain exclusive control over the land in question.

7.    Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses.

8.    The use of the land must always be consistent with the group’s interests and the enjoyment of the land by future generations.

9.    Even before an Aboriginal titre is established by a court of law or an agreement, the Crown is required to consult, in good faith, any Aboriginal group asserting title to the land in regards to any proposed uses of the land and, accommodate the interests of the claimant group, if appropriate.

10.The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially negative effects upon the interest claimed.

11.Once the existence of an Aboriginal title has been established, the Crown must seek the consent of the title-holding Aboriginal group in order to carry out the proposed developments on the land. If the consent of the group cannot be obtained, the Crown must then justify the intrusion under section 35 of the Constitutional Act of 1982.

12.In order to justify the intrusion, the Crown must demonstrate a compelling and substantial governmental objective and that the resulting government action is consistent with its fiduciary duty towards Aboriginal communities.

THE LESSONS TO BE LEARNED

1.     In order to prove Aboriginal title, the Aboriginal group must demonstrate a sufficient, continuous and exclusive occupation of the land by its members.

2.     The sufficiency of the occupation is a culturally sensitive criterion and must be considered alongside the perspective of the Aboriginal group in question.

3.     The title-holding group has the right to choose the uses to which the land is put and to enjoy its economic fruits.

4.     Even prior to the establishment of an Aboriginal title, the honour of the Crown requires that the province consult the Aboriginal community concerning the uses of the land and accommodate its members’ interests, if appropriate.

5.     However, the land must never be developed or misused in a way that would substantially deprive future generations of the benefit of the land.

6.     When deciding Aboriginal matters, the Court must take care not to distort or lose the Aboriginal perspective Dubé Légal inc., Montréal Aboriginal law lawyers.