On June 26, 2014 the Supreme Court of Canada released a landmark
decision concerning Aboriginal rights and title in the
Tsilhqot'in Nation v. British Columbia1
In a unanimous decision, the Supreme Court of Canada confirmed
that the Tsilhqot'in Nation holds Aboriginal title to over 4000
square kilometers of land west of Williams Lake. This decision is
significant because it is the first judicial finding of Aboriginal
title in Canada.
In the Tsilhqot'in Nation case, the Supreme Court
of Canada confirmed that in order to establish a claim to
Aboriginal title, a First Nation must be able to prove
"sufficient occupation" of the land in question at the
time of European settlement. Of importance is the Court's
determination that "significant occupation" is not
confined to specific settlement sites, as had been determined by
the BC Court of Appeal, but extends to lands regularly used for
hunting, fishing or otherwise exploiting resources and over which
the First Nation exercised effective control at the time of the
assertion of European sovereignty. The adoption of the broader
"territorial" approach, as opposed to the narrower
"site specific" approach, will probably result in larger
title claims succeeding in the future.
Once Aboriginal title is established, the successful First
Nation will have the right to decide how their land will be used,
the right of enjoyment and occupation of their land, the right to
the economic benefits arising from their land and the right to
proactively use and manage their land. Such use will not be
confined to pre-sovereignty uses and customs such as hunting and
fishing only. Modern Aboriginal land holders will be able to use
their land in modern ways. As Aboriginal title includes the right
to reap the economic benefits of resources situated on Aboriginal
title lands, successful claims will result in a diminution of
resource revenues to the Province from those lands.
Of interest to many British Columbians is what effect, if any,
this decision will have on private property situated on land that
is subject to a First Nation claim. The simple answer is none. The
Tsilhqot'in Nation did not include any privately owned land in
their territorial claim, so how Aboriginal title can be reconciled
with private property rights is a question for another day.
The Tsilhqot'in Nation decision does not change the
basic principles of the Crown's duty to consult with First
Nations but it will compel the Crown to engage that duty more often
as the geographical scope of Aboriginal title has been more broadly
defined by the Court's adoption of the "territorial"
It is difficult to speculate about the implications of the
Tsilhqot'in Nation decision. Initial reaction seems to
range from "nothing has changed" to "the sky is
falling." While it clearly provides certainty to the
Tsilhqot'in Nation, what will its effect be on the many other
First Nation land claims in British Columbia? Will some First
Nations abandon the treaty process and seek certainty through the
Courts? How long will that process take?2 Will the
Crown's broader duty to consult resulting from the adoption of
the "territorial" approach enhance or impair resource
development on Crown land in British Columbia? The answers to those
questions will be revealed over time. Hopefully First Nations,
government and industry will seek ways to collaborate to shape the
future of British Columbia. The Tsilhqot'in Nation
decision repeated the oft-quoted words of Chief Justice Lamer in
the Delgamuukw decision that Aboriginals and non-Aboriginals
"are all here to stay."
Originally published by British Columbia Real Estate
Association's Legally Speaking.
1. Tsilhqot'in Nation v. British Columbia,
2014 SCC 44 Docket 34986.
2. The Tsilhqot'in Nation trial commenced in
November 2002 and took 339 hearing days over five years. After
appeals, the total journey through the courts took almost 12 and
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