The Supreme Court of Canada (SCC) by unanimous decision on June
26, 2014 in the case of Tsilhqot' in Nation v. British Columbia
declared for the first time "Aboriginal title" in Canada
for the Tsilhqot'in Nation over tract of land in the interior
of British Columbia. This case furthers a long line of
decisions on Aboriginal rights and title.
In Tsilhqot'in, the SCC prescribes the meaning of
Aboriginal title and articulates new tests for establishing it. The
decision lacks clarity on the practical application of its ruling.
The result, at least in the short run, is uncertainty, and
additional clarity from the courts will be required. In the
meantime, if major projects are to proceed, a much higher level of
cooperation among First Nations, government and project proponents
will be required.
In brief, Aboriginal title confers on the group that holds it
the exclusive right to decide how the land is used and the right to
benefit from those uses, subject to the restriction that the uses
must be consistent with communal ownership of the interest and must
assume the continued enjoyment of the land by future
generations. Government infringement of Aboriginal title is
theoretically possible in certain circumstances, but court
challenges on this aspect are likely to abound.
The implications of the case are significant and the impacts
cannot yet be determined. It seems clear however, that in addition
to observing established duties of consultation and accommodation,
it will be prudent for governments, going forward, to obtain
consent of each First Nation which has a potential Aboriginal title
claim in respect of Crown lands which are proposed for development
or in respect of a disposition of any interest is proposed in
Further analysis of the decision and its impact on the BC
energy sector to follow.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).