CPABC Industry Update - Fall 2015 | Page 28

Aboriginal Title... (cont’d) In a unanimous decision, the Court c o n fir med the Tsil h q ot ’in hol d Aboriginal title to a significant portion of the land they claim as QUESTIONS RAISED ON THE APPEAL In the decision, the Court considered the following important questions: their traditional territory. This is the first judicial finding of Aboriginal title anywhere in Canada. The principles set out in the decision will affect land use and resource development throughout the province. They will also affect the province’s approach to governance of the land base and its resources. Little “new” law was established, but important questions were answered that help clarify the application of existing legal principles. The main implications are that the need for attention to consultation, consent, and justification has increased. These concepts were already an integral part of the Crown’s constitutional obligations to deal with Aboriginal groups and their rights honourably. The William decision has confirmed how these concepts are engaged in the Crown–First Nation relationship to Aboriginal title – both before and after a claim is proven. The Court also confirmed the province’s ability to enact laws affecting Aboriginal title and described the process to do so in a way that discharges the Crown’s constitutional obligations. In brief, the decision raises the level of Crown engagement by clarifying the geographic scope of Aboriginal title and by elaborating on the content of Aboriginal title and how it interacts with Crown governance. page 28 | 1. W  hat is the test for Aboriginal title to land? 2. I f title is established, what rights does it confer? 3. D  oes the British Columbia Forest Act apply to land covered by Aboriginal title? 4. W  hat are the constitutional constraints on provincial regulation of land under Aboriginal title? 5. H  ow are broader public interests to be reconciled with the rights conferred by Aboriginal title? The Court’s answers to these questions help resolve uncertainty about how the Crown and First Nations should interact on decisions affecting the use and governance of the land and resources affected by Aboriginal title. As themes that run throughout the decision the Court stressed the need for a “proportionate balancing” of interests and a “governing ethos of reconciliation.” KEY FINDINGS The Co ur t re vers ed the B r i tis h Columbia Court of Appeal’s 2012 decision on Aboriginal title and made the following key findings: 1. Aboriginal title flows from occupation in the sense of regular and exclusive use of land. I N D U S T R Y U P D AT E Occupation, continuity, and exclusivity are the key elements. The use need not be intensive, but must be consistent with the function of the land. The common law and Aboriginal perspectives on land ownership must be given equal weight. 2. In this case, Aboriginal title is established over the area designated by the Trial Judge – i.e. about 1,700 km2 of the more than 4,000 km2 claimed by the Tsilhqot’in. Under this “territorial” approach, Aboriginal title is not confined to specific sites of settlement, but extends throughout the territory that was regularly used for hunting, fishing, or exploiting resources and over which the group exercised effective control. Importantly, the Tsilhqot’in did not include privately owned land in their territorial claim, so how Aboriginal title reconciles with privately owned land is a question for another day. 3. Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it. So, First Nations have governance rights and a right to the economic benefits associated with the land, not just the right to follow traditional practices on that land. 4. Where title is asserted, but has not yet been established, the Crown must consult with the group asserting title and, if appropriate, accommodate its interests. 5. Once Aboriginal title is established, section 35 of the Constitution Act, 1982 permits incursions on it only with the consent