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Aug 18, 2014 | Article

TITLE INSURANCE AND ABORIGINAL LAND TITLE CLAIMS

Tsilhqot’in Nation v British Columbia, 2014 SCC 14

This recent case of the Supreme Court of Canada has been long awaited by both indigenous groups and corporations conducting activities on land in which Aboriginal title claims have been made.

In 1983, the provincial government of British Columbia issued commercial logging licenses on land which the Tsilhqot’in Nation considered to be their traditional territory.  The Tsilhqot’in Nation opposed the use of the land for logging and failing to come to a resolution with the province, the Tsilhqot’in Nation subsequently made a claim for Aboriginal title to the land.  Both the Federal and Provincial governments opposed this claim.  If granted, Aboriginal title gives the group that holds it the exclusive right to determine how the land is used, as well as the right to benefit from the use of the land. 

Prior to the establishment of Aboriginal title on areas of land where there are unresolved title claims, the province must consult in good faith with any Aboriginal groups asserting title to the lands in question.  In the case of the Tsilhqot’in Nation and British Columbia, the province took the position that through its Forestry Act, the land in which there was an unresolved land claim was considered for the purposes of the Act to be crown land.  The province claimed this position was consistent with existing provincial policy.

The Supreme Court of British Columbia held that the Tsilhqot’in Nation’s claim to title was proven on the facts.  The British Columbia Court of Appeal then applied a narrower test and held that the Tsilhqot’in Nation had not established title to the land.

The Supreme Court of Canada in its recent decision found that the province had a duty to consult with and accommodate the interests of the Aboriginal group making a title claim prior to any use of, or incursion on the land.  The Court held that the province did not do that in this case.  Further, the Supreme Court of Canada found that the provincial legislation (i.e. the Forestry Act) did not properly balance the province’s constitutional section 35 responsibilities with the rights of the Aboriginal group making the title claim.  Ultimately, the Supreme Court of Canada held that the Tsilhqot’in Nation had established Aboriginal title to the land.

Paragraph 73: “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; and the right to pro-actively use and manage the land”.

How do Aboriginal title claims affect title insurance?

Title insurance companies provide to owners of real property a form of indemnity insurance that insures the owner from defects in title of the property.  Title insurance is a retroactive form of insurance that protects owners of real property from events that occurred in the past as opposed to those occurring in the future.  Title insurance companies will cover the insured property owner against any claims made on the title of their land.  Depending on the title insurance company that you deal with, the company will outline their “covered title risks”.  In most cases, a title insurance company will insure against any title claims made to the land, including any defects in the title, charges, or liens.  Accordingly, whether an individual or an Aboriginal group is claiming title to a piece of land that the insured owns, a title insurance company will not discriminate.  This is especially relevant in areas where the property owned is subject to an unresolved land claim.

Title insurance companies will not insure land where there is an existing land claim. If it is discovered that there is an existing claim on the land in question which was present at the time the insured obtained the title and insurance, this would not be covered by the title insurance company.  To use the Tsilhqot’in Nation case as an example: the Tsilhqot’in Nation made their land claim in 1983; if following this claim a person bought land that fell within the claim area and subsequently obtained title insurance on the land, the title insurance claim would not be successful. This is due to the determination that the Tsilhqot’in Nationdid in fact have Aboriginal Title to the land.  The result is, if you purchase land that you know an individual or group claims title to, a title insurance company will not cover that land in a subsequent insurance claim.  However, should the claim be made subsequent to you obtaining title insurance, your title insurance company should cover any financial losses you may incur as a result of the land claim.

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Fergus, ON N1M 1T7

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