Course:Public Law - Unit 6.7 - Group 2 - Justifying Infringement of Aboriginal Title

LAW 505
Section:	002
Instructor:	Robert Danay
Email:	rdanay@mail.ubc.ca
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Background

Facts

The Musqueum Reserve is located in Vancouver, British Columbia, on the north shore of the Fraser River close to the mouth of the river, and adjacent to the University of British Columbia campus. The Musqueum have lived in this area as an organized society for tens of thousands of years prior to European contact and the assertion of British sovereignty. There is strong support for the claim that the Musqueum have aboriginal title to the lands currently occupied it, the University of British Columbia, and much of the Vancouver neighbourhood known as Point Grey.

Assume that such a claim is accepted by a Court, and that the Court finds infringement of aboriginal title, as protected by s. 35(1), in the ownership and occupation of these lands by non-aboriginal people.*

• This fact scenario is based on one written by Prof. Bakan for Constitutional Law in April 2011, found here: http://law.library.ubc.ca/exams/.

Question

What kinds of questions, analyses, and issues would be raised by the “test of justification” part of the section 35(1) analysis ?

Response

Review of relevant case law

Recognition of aboriginal title

The modern era of jurisprudence relating to aboriginal land rights is considered to have began with the case of Calder v. Attorney General of British Columbia [1973] S.C.R. 313.

Calder stated that the land rights of First Nation's peoples did indeed survive European settlement and that these remained legally valid in the present day unless they had already been extinguished by treaty.

Following this, the case of Guerin v. The Queen 2 S.C.R. 335 furthered the cause of asserting a legal basis for the land claims of First Nations groups. The court in Guerin found that while the Crown held underlying title to all land in British Columbia, that it was burdened by the pre-existing legal rights which had formed by the occupation of that land by First Nations peoples before European settlement. The court's recognition of this legal right as "an independent legal interest" meant that the Crown was bound by a full sui generis fiduciary duty. The full scope of this duty would continue to be clarified through further cases.

R v. Sparrow 1 S.C.R. 1075 stated that s.35 of the Constitution Act 1982 gave protection to all Aboriginal rights which had not been extinguished prior to its enactment. While the court held that it is possible for legislation to infringe rights protected under s.35, such infringement is only permitted when a two stage test is passed:

1.Is there a valid legislative objective? (as an example, the court stated that conservation of a resources would be a valid objective)

and

2.Can such legislation or action can be justified within the context of the government's fiduciary obligations?

The principles originating in the preceding cases were again reviewed in the case of Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. In Delgamuukw, the court again confirmed that the crown was bound by a full sui generis fiduciary duty to First Nations peoples but also affirmed that Aboriginal title is based on unique legal foundations as they arise from possession of the land before European settlement. In doing so, the court recognised that both common law and First Nations' perspectives should be considered when evaluating a claim of aboriginal title. Delgamuukw, also confirmed that infringements of aboriginal title are permitted under s.35 of the Constitution Act 1982, at both the federal and provincial levels, provided that they are justified under the test set forth in Sparrow.

Further clarifying the law on claims of aboriginal title, in Haida Nation v. British Columbia (Minister of Forests) [2004] 3 S.C.R. 511, another important step in the jurisprudence surrounding Aboriginal title was taken. In Haida, the court found that where there was sufficient strength to a claim of Aboriginal title or right, and where there existed a potential for serious threat to or adverse effect upon the right or title claimed from a proposed development, that the crown had a duty to consult with the First Nations group claiming that title or right.

Finally, in the case of Tsilhqot’in Nation v. British Columbia [2014] SCC 44, even more legal ambiguity surrounding Aboriginal title claims was removed. In Tsilhqot’in Nation, the court tackled the question of what must be proven in order for a claim of aboriginal title to be fully recognised. Using the test explored in Delgamuukw, the court arrived at the following three characteristics which must be proven by the group claiming Aboriginal title:

1. Sufficiency of Occupation
-This claim is to be considered from a dual First Nations' and common law perspective.
-The inquiry into whether this claim is made out is specific to individual contexts.
-Salient features of a successful claim in this regard will include evidence of a strong presence on the land, and evidence that the group claiming title has historically acted in a way which would inform third-parties that the land was considered held for that groups own purposes.
-Fishing, hunting, foraging and other intensive use of the land will probably be enough to make a claim of sufficiency successful, provided that the use illustrates an intention on the part of the First Nations group to hold the land in a similar manner to that which would be sufficient to establish title at common law.
-Mere nomadic passage through the land claimed will not establish sufficiency of occupation.

2. Continuity of Occupation
-The First Nations group making the claim must illustrate that their current occupation of the land in question is somehow rooted in the behaviour of their ancestors in the era predating the assertion of sovereignty.

3. Exclusivity of Occupation
-Failure to successfully claim exclusivity of occupation may still result in the court awarding usufructary rights, but will prevent a claim for full title to the land from succeeding.
-A successful claim here would have to illustrate that the group claiming title showed an intention and ability to control the land, however the presence of others on the land historically does not necessarily negate this claim.
-Proof for this claim can take a broad variety of forms such as proof of exclusion of others, proof of requiring permission for others to occupy the land, or proof that treaties were made with other groups, etc.

Test for infringement

Tsilhqot’in Nation also reaffirmed a three stage test used to determine whether the crown, in overriding the wishes of the Aboriginal title holding group, is justified in doing so because it benefits the broader public good:

1. Has the government fulfilled its duty to consult and accommodate the right holding group?

Here, as discussed in Haida, the duty to consult is proportional to both the strength of the rights claim as well as the potential for the decision to adversely effect the right claimed. Therefore, where a right has been established the duty to consult will be greater.

As was noted in Tsilhqot’in Nation: “The degree of consultation and accommodation required lies on a spectrum as discussed in Haida. In general, the level of consultation and accommodation required is proportionate to the strength of the claim and to the seriousness of the adverse impact the contemplated governmental action would have on the claimed right. “A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties." The required level of consultation and accommodation is greatest where title has been established. Where consultation or accommodation is found to be inadequate, the government decision can be suspended or quashed.”

2. Were its actions founded on accomplishing a compelling or substantial objective?

In Delgamuukw, the Court explained that the relevant objective must be directed at the purposes underlying the constitutionalisation of Aboriginal right - that is, recognition of Aboriginal peoples’ prior occupation of North America, and reconciliation of that occupation with the Crown’s assertion of sovereignty.

The second objective raises an interesting prospect - limitations on Aboriginal rights will sometimes be justified in the pursuit of objectives of importance to the community as a whole, if they are a necessary part of the reconciliation of Aboriginal societies with the broader community.

The Court in Delgamuukw affirmed examples of potentially compelling objectives - protection of the environment, development of infrastructure and settlements, and general economic development of the interior of British Columbia.

3. Are the government's actions consistent with the fiduciary duty it owes to the right holding group?

If a compelling and substantial objective is found the government must go on to show that the proposed incursion on the Aboriginal right is consistent with the Crown’s fiduciary duty towards Aboriginal people.

In Tsilhqot’in Nation the court emphasised two principles relevant to the duty:

- first, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.

- second, the Crown’s fiduciary duty infuses an obligation of proportionality into the justification process. Implicit in the Crown’s fiduciary duty to the Aboriginal group is the requirement that the incursion is necessary to achieve the government’s goal (rational connection); that the government go no further than necessary to achieve it (minimal impairment); and that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest (proportionality of impact).

Analysis

Recognition of aboriginal title

In the scenario posed, much of the above discussed case law would be relevant.

To begin with, the scenario mentions that the Musqueum have a strong claim to aboriginal title to the various areas mentioned. Whatever supporting evidence the Musqueum have would likely be run through the test for establishing aboriginal title given in Tsilhqot’in Nation.

The scenario suggests that this test would be satisfied, and that the Musqueum would have their claim to aboriginal title over these land recognised. It also asks us to assume that the court finds that the ownership and occupation of the areas mentioned are an infringement of aboriginal title. Assuming that this is the case, the court would likely move on to consider the other three stage test from Tsilhqot’in Nation regarding whether an infringement is justified.

Infringement of aboriginal title

First element: Duty to consult and accommodate

As aboriginal title is assumed to have been fully established, the first stage of the test gauging whether the crown fulfilled its duty to consult and accommodate will be held to a higher standard. It is likely that the court would find that federal government did not in fact fulfill their duty to consult the Musqueum, as most of Vancouver was founded in the era predating s.35 of the Constitution Act 1982 as well as the legally recognised duty to consult as clarified in the Haida case. The duty was almost certainly not fulfilled because the fiduciary duty of the government was not yet incorporated into the constitution or yet recognised by the common law. The court may take this into account in its deliberations on the matter, but it is unclear what effect this would have on the outcome.

Second element: Compelling and substantial objective

Does the establishment of the university and residential area of Point Grey involve an objective that is directed toward the recognition of Aboriginal peoples’ prior occupation of North America, or the reconciliation of that occupation with the Crown’s assertion of sovereignty?

The University

At the outset, it should be first noted that the Delgamuukw expressly recognised "the development of infrastructure" as being an example of a potentially compelling objective. A university would be regarded as being a form of infrastructure, and so this might support the view that the university should be regarded as a "compelling and substantial objective".

Further support for this view may come from the fact that the University pursues objectives which are arguably consistent with that of reconciliation. The university has specific programs directed toward indigenous studies. To the extent that such programs provide students - and members of the general community - with a greater awareness and appreciation of issues affecting aboriginal peoples, it is arguable that the university pursues objectives which are directly relevant to the cause of reconciliation.

The compelling and substantial objective is to be considered from both the Aboriginal perspective and the perspective of the broader public and must further the goal of reconciliation of Aboriginal interests with those of the broader interests of society. The university serves the broader goal of education. However, as noted above, it also arguably serves the purposes of reconciliation, by fostering a greater understanding between the communities.

On balance, it would seem that a "compelling and substantial purpose" may be found in respect of the university.

Point Grey

It is arguably more difficult to connect the development of Point Grey with the types of purposes referenced in Delgamuukw. It certainly seems difficult to reconcile residential development in the claim area with the recognition of Aboriginal peoples' prior occupation of that area. Indeed, the development of Point Grey as a residential neighborhood seems entirely destructive of such recognition.

The court in Delgamuukw did recognise the settlement of foreign populations might be a valid purpose. However, this purpose was only recognised to the extent it supported other aims, namely, "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". Of the listed aims, the only one that appears relevant would perhaps be the building of infrastructure. Is the "settlement of foreign populations" in the Point Grey area necessary to support the "building of infrastructure" ?

The compelling and substantial objective is to be considered from both the Aboriginal perspective and the perspective of the broader public and must further the goal of reconciliation of Aboriginal interests with those of the broader interests of society. While the development of the Point Grey area might be viewed as being compelling and substantial from the perspective of economic development, and so wider society, it seems more difficult to reconcile such development with the Aboriginal perspective, particularly given that the nature of the right claimed is a right over the land.

It is not clear whether a compelling or substantial purpose may be found in respect of Point Grey.

Third element: Fiduciary duty

The University

Question relevant to the first principle from Tsilhqot’in Nation - does the use of the land as a university campus substantially deprive future generations of the benefit of the land?

The fact that the university is a public institution may be relevant here. That is because the government - as opposed to private interests - may be better positioned (or indeed obliged) to develop arrangements that meet the current use (tertiary education) and access to the land by the traditional owners. The court would need to consider whether there is evidence of such arrangements.

Even if there are access arrangements, do such access arrangements mean that future generations are not "substantially deprived" of the benefit of the land ? Much would seem to turn on the nature of the access arrangements. If such access arrangements fall short of the access a normal landowner would enjoy, then it would seem doubtful that this element of the duty could be met.

Questions relevant to the second principle from Tsilhqot’in Nation - is the creation of the university necessary to achieve the government's goal ? Does it go no further than necessary to achieve the goal ? Are the benefits outweighed by the adverse effects on the Aboriginal interest ?

What is the government's goal here in operating the university ? Under section 35, the goal needs to be directed toward the recognition of Aboriginal peoples’ prior occupation of North America, and reconciliation of that occupation with the Crown’s assertion of sovereignty. It seems difficult to see how the university is relevant to the first objective. Could the university be relevant to the second objective ? As we have noted already, some programs at the university may seek to further the cause of reconciliation. It may also be the case that the university seeks to support indigenous students in some way - could this be viewed as furthering the cause of reconciliation ?

But is the creation of the university necessary to achieve that goal ? The next question - minimal impairment - touches squarely on this subject. Does the creation of the university pursue the goal of reconciliation in a manner which involves minimal impairment ? A simple question - could the university have been constructed elsewhere ? That is, could it have pursued the goal of reconciliation on another site, which is not subject to the claim ?

As to whether the benefits of the university outweigh the adverse side effects on the Aboriginal interest. Of course, the university involves clear benefit for the wider community. The adverse effect on Aboriginal interest is of course the fact that the university is located on their land, and so they cannot enjoy the land as if they were landowner.

Point Grey

The questions raised above in respect of the university are perhaps even more difficult for Point Grey.

Firstly, it seems difficult to see how Point Grey has all but removed any benefit of the land for future generations. While access arrangements might be made in respect of the university, it doesn't seem possible that such arrangements could be imposed on private landowners. Given that, it seems likely that the development of Point Grey has substantially deprived future generations of the benefit of the land.

Was the development of Point Grey necessary to the government's purpose ? As noted previously, the purpose for Point Grey must be incidental to some other recognised purpose. Specifically, Point Grey would provide "settlement for a foreign population" to sustain economic growth, or perhaps the development of infrastructure. This point may be arguable - absent a population, it may be difficult to sustain or justify the building of such infrastructure (including perhaps the university).

Does the development involve minimal impairment ? If the goal here is to support the building of infrastructure, and that goal requires a resident population (as it presumably would), then again, it may be arguable that Point Grey involves minimal impairment. The obvious counter-argument might be that such residential development could have occurred elsewhere, on land that was not the subject of the claim.

Do the benefits of Point Grey outweigh the adverse impact on aboriginal interests ? As noted at the start of this section, it is difficult to see how indigenous people can continue to enjoy the land here. Given that, the adverse impact is high - indeed, it is arguably absolute. Do the benefits of residential housing outweigh such adverse impact ? This is a difficult question. Further evidence may be required to support the court's decision on this point.