SCC Tsilhqot’in Decision & Wildlife Management
On June 26, 2014 the Supreme Court of Canada brought down its decision on this landmark case of Tsilhqot’in Nation v. British Columbia, regarding Aboriginal title. The unanimous decision granted Aboriginal title to the First Nation peoples of Tsilhqot’in. This First Nations group received 45% of the area they claimed as their traditional territory. This land base is up significantly from the other First Nations groups that have signed recent treaties.
The case originated from the Ministry of Forests, Province of BC granting a timber license on First Nation land. The Band had not given Ministry of Forests permission so they sought relief thru BC’s courts to establish Aboriginal title.
SCC stated, “now that title has been established however, the timber on it no longer falls within the definition of “Crown timber” and the Forest Act (BC) no longer applies.” The Court stated forest harvesting activities are a prima facie infringement on Tsilhqot’in hunting and trapping rights.
The focus of this decision has been on the natural resources of timber, mining rights and oil and gas, now belonging to the First Nation group that has been granted Aboriginal title. What about the wildlife and wildlife habitat that is now a part of this Aboriginal title?
Wildlife is not privately owned but is managed under the Public Trust Doctrine which states Nature owns the wildlife that is managed by the government trustee (F&W Branch) for the benefit of all BC residents (beneficiaries). However, the wildlife habitat now belongs to the First Nation group. The SCC stated that Aboriginal rights are a limit on federal and provincial jurisdiction. Does this mean that the BC Wildlife Act does not apply to Aboriginal title?
The SCC stated, “broadly put, provincial laws of general application apply to lands held under Aboriginal title. However, as we shall see, there are important constitutional limits on this proposition. They are:
- Section 35, Constitution Act 1982
- Provincial power to regulate lands under Aboriginal title maybe limited by federal power.
The simple answer is probably that the Wildlife Act does apply but with limitations. Property rights will limit the application of the Wildlife Act. Aboriginal title lands enjoy the law of trespass that gives the First Nation the right to restrict access. One prominent environmental lawyer stated hunting groups are expressing real concern about this level of restriction.
The SCC stated, “once Aboriginal title is confirmed however, the lands are “vested” in the Aboriginal group and the lands are no longer Crown lands.” The Court went on further to explain, “in simple terms, the title holders have the right to the benefits associated with the land – to use it, enjoy it, and profit from its economic development.”
In BC, 94% of the land base is what the government terms Crown land but the FN people state this is unceded aboriginal land. The Privy Council in 1888 in the case St. Catherine’s Milling & Lumber v. The Queen supports the FN view when they stated, ‘that provincial Crown title is not complete until Aboriginal title was dealt with’.
One aspect of the economic development could be ecotourism, which is an example how the Aboriginal group could use it (land) and enjoy it.
SCC said, “Aboriginal title confers ownership rights similar to those associated with fee simple, including:
- The right to decide how the land will be used
- The right of enjoyment and occupancy of the land
- The right to possess the land
- The right to the economic benefits of the land
- The right to pro-actively use and manage the land.
A couple of ways a First Nation group could decide how the land will be used for wildlife purposes could be to establish a wildlife preserve to protect critical wildlife habitat. This could include a grizzly bear preserve or a wolf preserve to protect critical denning areas. Or to protect critical habitat for a species under SARA. Given the large territories these two large carnivores require, they may not be able to fully protect all their territory but they could lobby for buffer zones such as provincial parks to become critical wildlife habitat.
Under the right to possess the land, access to their lands maybe restricted to protect critical ecologically sensitive land and the right to ban hunting and trapping on their land by non-residents of the Aboriginal group. There are many examples currently, where non-Natives cannot access Aboriginal land.
Another important wildlife initiative that multiple First Nation groups could achieve is the establishment of connected wildlife corridors thru their lands. The Y2Y initiative is an example where various East Kootenay First Nation groups and other First Nation groups along the Y2Y corridor could join together to bring this corridor to fruition.
The Coastal First Nations have established a moratorium on grizzly bear hunting in their traditional territories. The Coastal First Nations could enforce this moratorium once they achieve Aboriginal title or apply to the Courts for Aboriginal title by banning hunting of grizzly bears and wolves on their land or access to their land.
The work that Raincoast Conservation Foundation and Pacific Wild have done with the Coastal First Nation groups will be extremely valuable in helping establish ecological and wildlife preserves within the Great Bear Rainforest.
In the Gwich’in (Yukon) and Nishga land claims settlements, the Yukon and BC governments respectively retained the ultimate jurisdiction for wildlife and wildlife habitat, but the management of wildlife is jointly administered by a board of equal representation from both groups. The Tsilhqot’in decision seems to grant more power and control of Aboriginal land to the First Nation group. Over the next few years we will see whether more power and control of wildlife management is granted to the First Nation group away from the Province.
If joint wildlife management groups are established between the Province of BC and First Nation people, then we could see specific, local wolf management plans and grizzly bear management plans established. This would be an important area for WAI, Raincoast and other environmental NGO’s to work with First Nation groups to assist them in the rewriting of the current draconian provincial plans.
One of the main facets of Aboriginal culture is the sustainability of the environment. They look out seven generations to see how a decision would impact future generations. One of the caveats the SCC established on Aboriginal title was the land cannot be alienated and land cannot be developed or misused in a way that would substantially deprive future generations of the benefit of the land.
This caveat dovetails well with the First Nation concept of sustainability of the environment. It also encourages ecotourism as an important driver of their economic development.
Since the aboriginal people are more conservation minded than the predominant resource extracting white culture, this SCC decision can be a real catalyst to the conservation of large carnivores, their habitat as well as other species. It would immensely help WAI and other wildlife conservation organizations to continue to work with First Nation groups to achieve these important goals.
Gary R. Allan, JD