This morning the Supreme Court of Canada released its landmark decision on the Tsilhqot'in land claim to roughly 4,000 km2 of land west of Williams Lake, BC.  In a unanimous decision in favour of the Tsilhqot'in, the court answered several important questions

  1. What is the test for Aboriginal title to land?
  2. If title is established, what rights does it confer?
  3. Does the British Columbia Forest Act apply to land covered by Aboriginal title? 
  4. What are the constitutional constraints on provincial regulation of land under Aboriginal title? 
  5. How are broader public interests to be reconciled with the rights conferred by Aboriginal title? 

The court decided

  1. Aboriginal title flows from occupation in the sense of regular and exclusive use of land.  Occupation, continuity and exclusivity are the key elements.  The use does not have to be intensive, but 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 1700 km2 of the more than 4,000 km2 claimed by the Tsilhqot'in, and not just the intensively occupied village sites.  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 a right to the economic benefits, 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, s. 35  of the Constitution Act, 1982  permits incursions on it only with the consent of the Aboriginal group or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown's fiduciary duty to the Aboriginal group.  Therefore provincial laws, like the Forest Act, must be reconciled with the aboriginal interests by way of consent or consultation, or else they will not apply.
  6. In this case, the Province's land use planning and forestry authorizations were inconsistent with its duties owed to the Tsilhqot'in people.

This is the first time aboriginal title has been established anywhere in Canada.  The implications of this decision are dramatic and will affect land and resource development throughout the province.  The province's approach to governance will also have to change to reconcile crown and aboriginal governance interests more systematically.

The court rejected the "specific sites" approach advocated by BC and the BC Court of Appeal and accepted the lower court's "territorial" approach by finding that occupation sufficient to ground aboriginal title is not confined to specific sites of settlement and extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control. 

The Court also established a flexible approach to how cases for aboriginal title are framed.  The Court supported this flexible, functional approach saying "What is at stake is nothing less than justice for the Aboriginal group and its descendants, and the reconciliation between the group and broader society.  A technical approach to pleadings would serve neither goal."

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