Canada: Tsilhqot’in Nation v. British Columbia

On June 26, 2014, the Supreme Court of Canada ("SCC") released its landmark decision in Tsilhqot'in Nation v. British Columbia. At the heart of this decision, the SCC was confronted with the question of Aboriginal title and what constitutes a justifiable incursion on such title. For the first time, the SCC made a declaration of Aboriginal title over a large tract of land claimed by the Tsilhqot'in Nation located in the Chilcotin region of the west central interior of British Columbia. The SCC pronounced that once Aboriginal title has been established, development of Aboriginal title lands by the Crown or third-parties can only proceed either by: (i) obtaining First Nation consent; or (ii) the Crown demonstrating that it has discharged its duty to consult and accommodate and justifying its infringement on title under the Sparrow framework.

The Tsilhqot'in Nation is a semi-nomadic grouping of six bands sharing common culture and history with the Tsilhqot'in Nation's territory. The dispute concerning Tsilhqot'in title to this area has a long history dating back to 1989 when the Province of British Columbia granted a company a right to commercial logging activities in Tsilhqot'in territory. Thereafter, the Xeni Gwet'in First Nations government (one of the six bands that make up the Tsilhqot'in Nation) objected and sought a declaration prohibiting this activity within Tsilhqot'in territory.

The trial started in 2002 and spanned over 5 years with approximately 339 days spent in court prior to a decision being released in 2007 (2007 BCSC 1700). In the end, Mr. Justice Vickers' decision of the British Columbia Supreme Court fell short of a declaration of Aboriginal title due to a pleadings technicality. However, he stated in his judgment that the Tsilhqot'in Nation was entitled to a declaration of Aboriginal title for a portion of the claim. On appeal at the British Columbia Court of Appeal, Mr. Justice Groberman incorrectly applied a test of Aboriginal title premised on "small spots" or site-specific occupation, which led him to hold that the Tsilhqot'in claim to title had not been established (2012 BCCA 285).

The Tsilhqot'in Nation appealed to the SCC.

SCC Decision

The SCC found in favour of the Tsilhqot'in Nation on the issue of Aboriginal title.

In overturning the decision of the BCCA, which sought to apply the site-specific occupation test of Aboriginal title, the SCC clarified the Delgamuukw test and concluded that the following three requirements must be present to establish Aboriginal title:

  1. sufficient pre-sovereignty occupation;
  2. continuous occupation (where present occupation is relied on); and
  3. exclusive historic occupation.

The Aboriginal claimant has the onus of establishing Aboriginal title by satisfying these three requirements. The SCC warned against approaching the above analysis strictly through the application of common law concepts. Instead, both the Aboriginal and common law perspectives must be given equal weight in such analysis. The SCC affirmed that Aboriginal title "extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty." In doing so, the SCC rejected the BCCA's theory of a "network of specific sites over which title can be proven."

 i. What Constitutes Sufficient Occupation?

On the question of the first requirement, the SCC held:

To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purpose. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.

The question of sufficient occupation will always depend on the Aboriginal peoples' way of life and laws, including those who were nomadic or semi-nomadic. This is the "culturally sensitive" approach, which takes into consideration the First Nations' laws, world views, practices, size, technological ability, the character of the land being claimed and any other applicable indicia of occupation.

 ii. Continuity of Occupation

An Aboriginal claimant must provide evidence of occupation prior to assertions of Crown sovereignty. If present occupation is relied on, then the requirement of continuity between present and pre-sovereignty occupation arises. Simply put, the occupation must be rooted in pre-sovereignty times.

 iii. Exclusivity of Occupation

Lastly, the Aboriginal claimant must establish exclusive occupation of the land at the time of the Crown's assertion of sovereignty. Again, this inquiry requires an understanding of both the First Nations' and the common law notion of exclusivity. Additionally, the "culturally sensitive approach" must be applied in such a manner so as to consider the specific context and characteristics of the Aboriginal peoples' way of life and legal orders.

Once Aboriginal title has been established by fulfilling these three criteria, infringement must be justified assuming consent has not been given. The SCC clarified the justification analysis, as set out in Sparrow, by stating:

[t]o justify overriding the Aboriginal title-holding group's wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown's fiduciary obligation to the group.

Notwithstanding the above justification analysis, the SCC held that the "Crown must seek the consent of the title-holding Aboriginal group to developments of the land," prior to initiating its justification analysis.

In summary, Aboriginal title confers a cognizable legal right to the land itself. As "the Crown does not retain a beneficial interest in Aboriginal title land," it must justify incursions on title and cannot deprive future title holders the "right to the benefits associated with the land – to use it, enjoy it and profit from its economic development." Additionally, Aboriginal title includes the following bundle of rights: "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."

Ultimately, the SCC upheld the trial judge's decision that the Tsilhqot'in had established Aboriginal title to the claim area at issue. The appeal was allowed and a declaration of Aboriginal title over the area was made. Additionally, the SCC concluded that the honour of the Crown was not upheld as British Columbia failed to consult and accommodate the Tsilhqot'in Nation in respect of provincial-authorized forestry activities within Tsilhqot'in territory pending resolution of Tsilhqot'in's land claim.

In light of the above conclusions, a consideration of the relationship between provincial laws and Aboriginal title was not necessary for the disposition of the case. Nonetheless, the SCC concluded that provincial laws of general application apply to Tsilhqot'in's title lands subject to the following constitutional constraints: (i) s. 35 of the Constitution Act, 1982; and (ii) s. 91(24) of the Constitution Act, 1867. Additionally, the SCC considered the concurrent issues of whether or not the Province of British Columbia can legislate in respect of Aboriginal rights, including title and whether Aboriginal rights, including title, fall at the core of federal regulatory jurisdiction under s. 91(24) of the Constitution Act, 1867. The SCC held that the doctrine of inter-jurisdictional immunity did not apply as "s. 35 of the Constitution Act, 1982 imposes limits on how both the federal and provincial governments can deal with land under Aboriginal title." Therefore, neither level of government is allowed to legislate in a way that interferes with Aboriginal rights, including title without satisfying the requirement of proving that such incursions are justified on a "compelling and substantial" standard.

Moving Forward

As a result of this decision, the Court has warned against Crown and third party activities that proceed on a basis inconsistent with the honour of the Crown. The SCC exemplified this point by stating that "if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing." This statement strongly suggests that Crown and third parties should pre-emptively seek a collaborative framework directly with First Nations for meaningful dialogue on all high-level decisions, management and use of lands and resources within lands claimed by First Nations.

Government-to-Government Negotiations

First Nations and the Province of British Columbia may seek to advance a framework for meaningful discussions in respect of land use planning, management, tenuring and revenue sharing. These four areas have been identified as mutually important objectives, pursuant to "The New Relationship" vision statement. In addition, government-to-government discussions may include a process which will seek to harmonize the jurisdictional interplay between federal, provincial and Aboriginal title and laws over specific lands. By choosing to adopt and implement a collaborative framework, the parties will advance the concurrent objectives of recognition and reconciliation. We are confident that moving forward on this basis will be seen as an opportunity to ensure that First Nations' can exercise their "right to proactively use and manage the land" and that the honour of the Crown is upheld.

Third Party Negotiations

The Crown may only delegate procedural elements of consultation to third parties seeking to develop resource and energy projects and related infrastructure within First Nations' territory. Nevertheless, companies would be well advised to seek a framework for meaningful discussions. Such discussions may be used as a way to ensuring that project impacts on Aboriginal rights including title are avoided, minimized, mitigated and accommodated. In some instances, these discussions may lead to a position whereby the parties may be able to contractually deal with concerns regarding specific impacts to Aboriginal rights, including title. Given the strong statements in this decision, we are confident that third parties will be motivated to advance a collaborative approach with First Nations.

Guidance for Legislative and Regulatory Policy

The SCC decision provides regulatory certainty by making it clear that provincial laws of general application apply to Aboriginal title lands, subject to constitutional limits.  It holds that federal and provincial governments and legislatures can infringe upon proven and vested Aboriginal title provided that the infringement meets the established test for "justification" (i.e., a compelling and substantial governmental objective and action that is consistent with the Crown's fiduciary duty). In all cases, the test for justification will be fact-specific in relation to the nature of the Aboriginal title and the nature and extent of the infringement.

In jurisdictions where Aboriginal title is asserted but not yet proven, the decision confirms and clarifies that the Crown's duty to consult and accommodate continues to apply to activities or decisions by the Crown that may affect asserted, but unproven, aboriginal title. Governments and legislatures will now need to consider the test for justification when crafting legislation, regulations, or executive policy that impacts upon Aboriginal land claims.  Governments in every province should also conduct extensive reviews of their current legislation affecting lands that are the subject to aboriginal claims to ensure that the objectives of such legislation are clear, compelling, substantial, and capable of justification.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.