Aboriginal LawPrepared by:
H.W. Roger Townshend
Tel: (416) 981-9454 • Fax: (416) 981-9350
Olthuis, Kleer, Townshend LLP
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There are two competing geographic pictures of what Aboriginal title looks like. On the one hand there is the picture of a land at the “assertion of sovereignty” by Europeans that sees Aboriginal nations (or local sub-groups of nations) occupying chunks of contiguous territory about which they move, usually in a seasonal round, to best harvest resources. There may be overlaps at the edges of territories, and at times disputes over territories, but vacant portions of territory were rare. On the other hand is a picture of an essentially vacant land, with occasional village sites or hunting camps which meet a standard of regular and intensive use. The land in between such pinpoints of Aboriginal title is at best “hunting territory”, subject to harvesting rights (if that), but not to Aboriginal title.
These are vastly different pictures. The first is consistent with viewing Aboriginal nations on a level with European nations. The second is based on ideas of Aboriginal peoples being “nomadic” and can be seen as in the same family as the theory of terra nullius. This second theory is sometimes called the “postage stamp” theory of Aboriginal title.
Until recently, Courts have managed to avoid opting exclusively for either of these theories. The leading case on Aboriginal title, Delgamuukw v. British Columbia,  3 SCR 1010, specified how Aboriginal title must be proved. An Aboriginal group must show that it exclusively occupied the land prior to the assertion of British sovereignty, and that their title has not been extinguished. Both physical occupation of the land and the content of Aboriginal land law can be used to prove occupancy. The degree of occupation required will vary with the context — regular use of specific territories for traditional harvesting can be sufficient occupation in some contexts. The Court also suggested that a nomadic group which “varied ‘the location of their settlements with the season and changing circumstances'” might be unable to establish Aboriginal title.
The Supreme Court of Canada elaborated on the Aboriginal title test in R. v. Marshall; R. v. Bernard  2 SCR 220 (“Marshall and Bernard”). The Court specified that “exclusive occupation” meant the effective control of land so that the Aboriginal group could have excluded others had it chosen to do so. This requires showing an “intention and capacity” to control access to the land.
Marshall and Bernard took a narrow view of the “regularity” of occupation that is required to prove Aboriginal title. The Court suggested that the regular seasonal use of particular tracts of land would “typically” give rise to Aboriginal rights, but not Aboriginal title. For this it relied on a line of Aboriginal rights cases, in which Aboriginal rights, but not title, had been in issue. The Court also took this view despite having noted, citing some English cases, that the degree of possession sufficient to ground Common Law title depended on all the circumstances, and that, depending on the nature of the land and how it was commonly enjoyed, it could be sufficient to prove that one hunted on the land, and that one could chose to use the land only intermittently and sporadically without losing title. It is hard to reconcile these doctrines with what the Court ruled in Marshall and Bernard. It is also difficult to imagine that one would not be able prove prescriptive Common Law title to a cottage property even if one only used it in the summer months.
LeBel J (writing for himself and Fish J), parted with the majority's reasoning in Marshall and Bernard, pointing out that the majority's reasoning on this point might prove fundamentally incompatible with a “nomadic” or “semi-nomadic” lifestyle. Thus to ignore the Aboriginal relationship to the land amounts to adopting the view that Canada was not occupied prior to the assertion of British sovereignty, and as LeBel J goes on to note, this is “clearly unacceptable and incongruent with the Crown's recognition that Aboriginal peoples were in possession of the land when the Crown asserted sovereignty”.
This division in the Supreme Court of Canada illustrates the debate of warring theories of territory. However, we should remember that, even on the theory of the majority in Marshall and Bernard, it depends on the evidence whether or not “nomadic or semi-nomadic” people can establish Aboriginal title.
NEW DEVELOPMENTS IN ABORIGINAL TITLE
In William v. British Columbia, 2012 BCCA 285 (“William”), the BC Court of Appeal dealt head-on with these warring theories. The Supreme Court of Canada has recently granted leave to appeal.
In William, the Court ruled that Aboriginal title required regular and intensive use, applied in a site-specific way. The examples given show that the size of site the Court was talking about, even when accepting that such sites could have been those used for hunting and fishing, was closer to square meters than to square kilometers (salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or buffalo jumps). That is, William adopted the “postage stamp” theory, although it rejected that term as prejudicial, and referred to it as the “site-specific” theory. Given the examples used, “micro-site-specific” might be a more accurate description.
William came to this conclusion about micro-site-specificity based on a detailed reading of case law, and on the concept of reconciliation. With regard to reconciliation, the Court used it as an interpretive principle in elaborating on the test for Aboriginal title. The Court thought that broad territorial claims to title were antithetical to reconciliation, which required respect for First Nations rights without unnecessarily limiting the sovereignty of the Crown or the aspirations of non-Aboriginal Canadians.
The Court thought the approach best suited to reconciliation would be a test for Aboriginal title that was micro-site-specific, reasoning that Aboriginal use of the land between such micro-sites could be protected by recognizing Aboriginal harvesting rights.
William set a higher threshold for proof of Aboriginal title than has the Supreme Court of Canada to date, by reading “definite” tracts of land as meaning micro-sites, and by requiring a high level of regularity and intensity. Marshall and Bernard, for example, explicitly left open the possibility of a “nomadic” group establishing Aboriginal title, and left open the possibility of Aboriginal title over larger areas of land than just village sites (e.g., hunting territories). By rooting the interpretation of the Aboriginal title test in the abstract concept of reconciliation, William seems to preclude, as a matter of law, results which the Supreme Court of Canada has said will depend on the facts.
In addition, the William approach seems to reinforce a skewed concept of “nomadic”. Already in the jurisprudence is an adoption of the concept of “nomadic” to describe the seasonal round of activities. While this is one meaning of the word, it also can mean aimless wandering. Anthropologists now quite consistently reject aimless wandering as applicable to any peoples. Few, if any, Aboriginal people actually wandered around aimlessly as the concept “nomadic” can suggest. Marshall and Bernard had asked the question whether or not whether nomadic and semi-nomadic peoples can ever claim title to Aboriginal land, and answered that it depends on the evidence. William has added to this that it depends on the evidence, considered micro-site by micro-site.
William also viewed exclusivity as a factor to be applied on top of the intensity of use. That is, first one tests for regular and intensive use, and for those micro-sites which meet this threshold, there is an additional test of exclusivity of use. However, so far, the Supreme Court of Canada has viewed exclusivity as a degree of occupation, not as a test to be added on top of intensity of use. Marshall and Bernard, for example, states that exclusive possession is typically established by showing regular occupancy or use of definite tracts of land for hunting, fishing or exploiting resources. That is, exclusivity can be inferred from intensity of use, rather than being an additional test.
What this leaves open is that if one can prove directly that an Aboriginal group had historically actually excluded others, one should not also have to prove the intensity and regularity of some other kind of land use. Showing that an Aboriginal group had excluded others proves exclusive occupation directly, without the need to infer it from regular and intensive land use. If a group is able and willing to go to war to protect their lands, what better evidence could there be of the group's connection to the land being of central significance to their distinctive culture? By not even considering exclusivity unless land use activities are of sufficient intensity and regularity, William seems to have precluded this argument.
As mentioned above, William's development of the test for Aboriginal title is animated by its concept of “reconciliation”. “Reconciliation”, as an established purpose of section 35 of the Constitution Act, 1982, has many applications in the field of Aboriginal law. But William used this concept as a way to limit Aboriginal rights because their full recognition might cause hardship to non-Aboriginal people. It could be suggested that the appropriate place for this analysis is in the justification of an infringement, not in the definition or proof of rights themselves.
It may be that Canadian Courts will not recognize Aboriginal rights without some check on the effects of this on the rest of society. That is what the concept of justified infringement is about. But this should not reach into the definition of the right itself. For example, it is not open for someone to steal a car, start using it as a taxi in order to earn a living, and then say, when the true owner shows up, that the owner's rights must be attenuated in the name of reconciliation with the thief's interests because it would be a hardship to the thief otherwise. Why should this argument work when it comes to the Crown appropriating Aboriginal lands?
Secondly, if we were to keep the analysis of reconciliation in the justification stage, it would allow more flexibility than merely defining the underlying right in a curtailed way. For example, if the result of recognizing Aboriginal title were truly to shut down the resource economy of a province, one could expect a Court would quickly find preventing this to be a purpose capable of justifying an infringement. But that is unlikely to be the result of recognizing Aboriginal title. Aboriginal rights should not be viewed as a black hole from which no benefits to anyone but Aboriginal people emerge. Many Aboriginal people would likely be interested in resource development as well, although probably in more sustainable ways, and would likely want to employ some non-Aboriginal people in such ventures. It is quite possible that the practical result of recognizing Aboriginal title would not be shutting down the economy, but would be the continuation of the economy, the continued employment of many persons now employed in it, with some different environmental management practices and with First Nations rather than large resource companies benefitting from the profits of it. It is not so clear that preventing this is a purpose capable of justifying an infringement of Aboriginal title. In addition, compensation for infringements is part of the justification analysis. If the right is attenuated, so will be the compensation required, removing this flexibility from the concept of reconciliation.
These are all matters for the Supreme Court of Canada to address when it considers William.
DUTY TO CONSULT AND ACCOMMODATE
The duty to consult and accommodate Aboriginal people when decisions are made that may affect their rights, interests or way of life has become a key principle of Aboriginal law, which has resulted in a large and growing body of law.
It has long been established that if a Crown action or legislation results in a prima facie infringement of a treaty or Aboriginal right, the Crown must “justify” that infringement if the action or legislation is to stand and be applicable. Part of the “justification” analysis includes an inquiry into whether the Aboriginal people in question were properly consulted.
The Crown also has a duty to consult with and accommodate Aboriginal people in respect of decisions that may affect lands to which they are asserting rights, even if those rights have not yet been “proven”. (Haida Nation v. BC (Minister of Forests),  3 SCR 511 (“Haida Nation”)). This duty flows from the Honour of the Crown, which has become a key concept in Aboriginal law, leading to different rights and duties in different circumstances. The duty to consult and accommodate Aboriginal people is in fact independent of their substantive Aboriginal or Treaty rights (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage),  3 SCR 388). The duty is both procedural (the Crown must follow the appropriate consultation procedures), and substantive (the Crown must make a decision which accommodates Aboriginal concerns, balancing them fairly with other societal interests).
Threshold Issues About the Duty
The duty to consult and accommodate arises when the Crown knows or ought to know that Aboriginal rights or title may exist, and is considering action that may adversely affect such rights or title. To be meaningful, consultation and accommodation has to take place at the level of strategic resource use planning, not just at an implementation level. The Courts have also made clear that the threshold for triggering a duty to consult and accommodate is quite low, and that any impact on Aboriginal interests need not be obvious.
The Content of the Duty
In sketching out the content of the duty of consultation, in Haida Nation, the Court ruled that there was a spectrum of consultation activities that might be required, ranging from discussing decisions to be made to securing the consent of the relevant Aboriginal group.
At one end of the spectrum of consultation and accommodation are cases where the “claim to title is weak, the Aboriginal right limited or the potential for infringement minor”. In such cases, the duty would amount to a requirement to “give notice, disclose information, and discuss any issues raised in response to the notice”. Even at this level, however, the discussions have to be undertaken “in good faith, and with the intention of substantially addressing” Aboriginal concerns.
At the high end of the spectrum, where the claims were relatively strong, and that the potential adverse effects of the decision in question were relatively serious, formal participation in the decision-making process and the provision of written reasons might be required. For serious impacts on proven rights, consent of the Aboriginal group might be required.
There is a large and rapidly growing body of jurisprudence on the content of the duty to consult and accommodate.
Who Owes the Duty
Haida Nation established that it is the “the Crown” owes the duty to consult. This leaves open questions about which Crown agency has the duty in particular cases.
It is important that the question of who has the duty to actually engage in consultation activities is different from the question of who must consider whether or not consultation has been sufficient. Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council,  2 SCR 650 (“Carrier Sekani”) clarified that that a decision-maker with jurisdiction to decide questions of law, has the jurisdiction to decide constitutional questions, including questions about whether or not the duty to consult and accommodate Aboriginal people has been fulfilled. However, while the jurisdiction to engage in Aboriginal consultation itself may be delegated, this delegation needs to be express or implied, and will not simply be inferred from the power to decide questions of law.
Neskonlith Indian Band v. Salmon Arm (City), 2012 BCCA 379 (“Neskonlith”), applied this to a municipal context in BC. The City of Salmon Arm had issued a development permit allowing construction of a shopping centre, neighbouring the Neskonlith reserve. The Neskonlith Indian Band objected that the land in question was at risk of flooding, and that building the shopping centre would likely lead to construction of flood control works that could impact on their reserve.
On first principles, one might think that since municipalities are “creatures” of provinces, when a province delegates decision-making powers to a municipality, a delegation of the duty to consult Aboriginal groups impacted by such decisions would be implied by the grant of such power.
However, the Court interpreted Carrier Sekani as precluding a municipal duty to consult. Granted, there appears to be no express duty to consult delegated by BC municipal legislation, although the Court did not explicitly say this. Nor did the Court consider directly if there was an implied delegation of the duty to consult. Rather the Court seemed influenced by the idea that it would be “impractical” and “inefficient” for municipalities to consult First Nations.
The Court went on to reason that, even if the municipality did owe a duty to consult, the alleged impacts were indirect and uncertain, resulting in a duty at the low end of the spectrum, which the Court thought had been discharged.
What Neskonlith did not come to grips with was the idea that by delegating decision-making powers without delegating corresponding duties to consult, a province could seem to make the duty vanish. This would be so since a province itself would not have the practical ability to consult about municipal decisions since it is not generally even aware of them.
However, apart from questions about who precisely owes the duty to consult, the duty must be met, and if not, the corresponding decisions are not valid. A structure that seems to make the duty vanish would be unconstitutional. This seems to be precisely what Carrier Sekani had in mind when it said that if a province set up a decision-making structure that was incapable of dealing with adverse impacts on Aboriginal interests, “the Aboriginal peoples affected must seek appropriate remedies in the courts”. The appropriate remedy would seem to be a declaration of constitutional invalidity of the legislation setting up such a structure. So, far from making things more efficient and practical, Neskonlith actually casts a shadow over the constitutional validity of the structure of BC municipal legislation.
DIVISION OF POWERS
In Daniels v. Canada, 2013 FC 6 (“Daniels”), the Federal Court decided that Métis and non-status Indians were “Indians” within the meaning of section 91(24) of the Constitutional Act, 1867, which makes “Indians, and Lands reserved for the Indians” subject to exclusive federal jurisdiction.
It is important to understand that this is quite a separate question from whether Métis and non-status Indians have Aboriginal rights protected by section 35 of the Constitution Act, 1982 (which explicitly includes Métis rights), or whether Métis or non-status Indians are “Indians” in the meaning of the Indian Act (which they are not).
The Daniels analysis employed a purposive approach to section 91(24). The key purposes found for section 91(24) were to control native people in order to facilitate development and settlement of lands (including in particular the construction of the national railway); to honour the Crown's obligations to natives; and eventually to civilize and assimilate native people. The Court reasoned that these purposes required a broad definition of “Indian” for section 91(24).
Although the Court clearly adopted a purposive approach to interpretation of section 91(24), as opposed to an original intention approach, the purposive approach was highly conditioned by history — the bulk of the evidence on which the Court relied was of Crown actions before and shortly after Confederation. This evidence revealed that the Indian/Métis distinction and the status/non-status distinction were flexible and permeable as far as Crown actions went. Different individuals and groups were moved across these distinctions historically, depending on the needs of the moment (as seen by the Crown). The key distinction from the European perspective was native/white, and Métis and non-status Indians were clearly on the native side of this. The Court saw this as supporting the need for a federal jurisdiction which would provide maximum flexibility for legislating about problems involving Aboriginal people. In doing this analysis, the Court (properly) placed much more emphasis on what Crown actors did than on what they said.
So what is the significance of Daniels? The apparent long-term goal of the plaintiffs is likely to try to compel Canada to provide services to the Métis and non-status Indians equivalent to those it provides to First Nations. However, as Daniels notes, (based on cases such as Reference Re Canada Assistance Plan (BC),  2 SCR 525; Lovelace v. Ontario,  1 SCR 950 (“Lovelace”); and Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  2 SCR 670) even if Canada has jurisdiction over Métis and non-status Indians, it may not be possible to compel Canada to exercise this jurisdiction if Canada does not choose to do so, or to compel Canada to treat Métis and non-status Indians in a way equivalent to First Nations.
Where this decision will make a big difference is in federal-provincial disputes about who is fund services for Métis and non-status Indians. Provinces will no doubt try to transfer such program responsibilities to Canada, and would have good grounds for that in Daniels. For that reason, we can expect an appeal.
On another issue, Daniels said that its ruling does not necessarily undermine the constitutionality of the Alberta Métis Settlement Act. The Court gave Lovelace an example of a Court finding that it was permissible for provincial legislation to benefit First Nations but not Métis, which implies that providing a benefit to First Nations did not affect the core of section 91(24) jurisdiction. However, reading the Métis Settlement Act as a whole, and applying Daniels to this, it seems that at least significant parts (and perhaps the entire purpose) of the Métis Settlement Act are inescapably within exclusive federal jurisdiction and thus ultra vires Alberta. The Métis Settlement Act goes deeply into the governance of Métis communities — unlike the legislation in Lovelace which merely provided financial benefits to First Nations.