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
What is the test for Aboriginal title to land?
If title is established, what rights does it confer?
Does the British Columbia Forest Act apply to land covered by
What are the constitutional constraints on provincial
regulation of land under Aboriginal title?
How are broader public interests to be reconciled with the
rights conferred by Aboriginal title?
The court decided
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.
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.
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.
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.
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.
In this case, the Province's land use planning and forestry
authorizations were inconsistent with its duties owed to the
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
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