Canada: Impacts Of Tsilhqot’in Part I: A Layperson’s Guide To Tsilhqot’in Nation v. British Columbia

This is the first in a series of seven articles on the Supreme Court of Canada's recent decision on Aboriginal title and its expected impacts. This article provides an overview of the key elements of the decision and poses the six key questions that we will answer in the coming weeks as part of this series.

On June 26, 2014, the Supreme Court of Canada released its reasons in Tsilhqot'in Nation v. British Columbia. The decision is the first time that an Aboriginal group has proved Aboriginal title over a significant land base in Canada. However, it is also a landmark decision for another reason: it will fundamentally change the way in which resource-based projects in Canada are regulated and approved.

What are Aboriginal Rights and Title?

To understand the implications of the Tsilhqot'in case, it is necessary to understand why Aboriginal rights and title have special significance in Canada. This understanding begins with a very simple history: Aboriginal people were here when European settlers arrived, living on and using the land that would become known as Canada. These first inhabitants were never conquered and, in many cases, never signed treaties surrendering their interest in the land. This is especially true in British Columbia.

This history leads us to the current situation in Canada: there are Aboriginal interests in Canadian land and resources that pre-date European contact and have never been surrendered. Canadian courts have acknowledged these interests as Aboriginal rights and title. Aboriginal rights recognize the rights of Aboriginal people, which pre-dated European contact, to carry out certain activities on traditional lands, such as hunting, fishing, gathering and a host of other activities. Aboriginal title, on the other hand, recognizes the pre-existing ownership of the land by Aboriginal people.

Until recently, it was not clear how Aboriginal title could be proved by Aboriginal groups. It was also not clear what a successful claim to Aboriginal title meant for Aboriginal people, the federal and provincial governments, or non-Aboriginal people using the land. These are the issues that the Supreme Court of Canada's decision in Tsilhqot'in addresses.

The Supreme Court of Canada's Decision

In 1983, B.C. granted a logging licence on land considered by the Tsilhqot'in to be part of their traditional territory. The Nation objected, and eventually launched a claim for Aboriginal title to the land at issue.

After conflicting rulings by two lower courts, the Supreme Court of Canada decided that the Tsilhqot'in Nation had proved Aboriginal title over just less than 2000 square kilometres, and set out a number of key principles regarding Aboriginal title in Canada:

  • Aboriginal title confers on Aboriginal groups the exclusive right to decide how the land is used and the exclusive right to benefit from those uses.
  • Aboriginal title can be proved over large areas of land that were used nomadically or seasonally by Aboriginal groups, not just over discrete parcels of intense use and occupation such as traditional village sites.
  • Where Aboriginal title is proved, provincial and federal laws do not automatically cease to apply; rather, these laws continue to be valid provided that any infringements of Aboriginal title are either consented to by Aboriginal groups or are justified (more on this below).

Nature of Aboriginal Title

According to Supreme Court of Canada, Aboriginal title is similar to private property ownership. This means that an Aboriginal group that has proven Aboriginal title has the right to decide how the land will be used; the right to use, occupy and possess the land; the right to the economic benefits from the land; and the right to pro-actively use and manage the land.

However, one important restriction distinguishes Aboriginal title land from private property ownership: because Aboriginal title is held by an Aboriginal group as opposed to an individual, it must be held and managed for the benefit of current and future generations. This means that it can only be transferred to the government, and it cannot be used or developed in a manner that would deprive future generations of the ability to benefit from the land in a meaningful way.

Proven Aboriginal title dramatically changes the status quo of Canada's current land management process. Time will be needed to fully assess how governments will work with First Nations where Aboriginal title exists. What is clear is that governments and other non-Aboriginal users of Aboriginal title land will need to secure the consent of Aboriginal groups, and if that consent cannot be obtained, governments will be held to the high standard of having to justify any infringement on Aboriginal title (more on this below).

Proof of Aboriginal Title

In general, in order to support a claim to Aboriginal title, Aboriginal groups will need to prove their claim in court. To do this, the Aboriginal group must demonstrate that, prior to the assertion of European sovereignty, the land was: "occupied" in a manner that was "sufficient", "continuous" and "exclusive".

"Sufficiency" can be established where the Aboriginal group historically acted in a way that would communicate to third parties that it held the land for its own purposes. Regular use of territories for hunting, fishing, trapping and foraging will in many cases demonstrate sufficient occupation. This is in stark contrast to some previous lower court decisions, which limited Aboriginal title to intensively used lands, like villages.

"Continuity" is only relevant if an Aboriginal group asserts that its current occupation of the land is evidence of Aboriginal title. Where this is the case, they must demonstrate that the present occupation of the area is a result of pre-sovereignty occupation. For example, if an Aboriginal group has only occupied an area for the past fifty years, the continuity element cannot be shown and Aboriginal title cannot be proved.

"Exclusivity" can be established where the Aboriginal group historically had the intention and capacity to exclusively control the land. Evidence that other groups requested access to the land or chose not to challenge the exclusive occupancy of the land can demonstrate exclusivity.

Where an Aboriginal group is able to demonstrate these three components (sufficiency, continuity and exclusivity), they will be able to prove Aboriginal title.

The Ability of Government to Infringe Aboriginal Title

A fundamental principle of Canadian law is that, while private property ownership provides the land owner with extensive rights to use and occupy the property, it does not mean that federal and provincial laws cannot apply to the property. Even on private land, the Criminal Code forbids crimes, the Fisheries Act protects fish bearing streams, the Environmental Management Act regulates protection of the environment, and so on.

Similarly, even where Aboriginal title is proved, federal and provincial laws apply to the land provided that the Aboriginal group consents to the proposed activities or that the government can justify any infringement to Aboriginal title.

The government can justify an infringement by demonstrating:

(Ii) the government has meaningfully consulted with the Aboriginal group;

(ii) there is a compelling and substantial public objective; and

(iii) the government has acted in a manner consistent with its fiduciary obligation to the Aboriginal group.

"Meaningful consultation" requires, at a minimum, that the government must act with good faith to share information with and solicit responses from Aboriginal groups. The adequacy of consultation will always be fact dependent, and has been subject to much litigation in recent years. In the context of infringements of proven Aboriginal title, the government will be held to a high standard; simply sharing information without meaningful discussion will not be sufficient.

A "compelling and substantial public objective" is one of a fairly broad range of objectives that recognizes that "distinctive [A]boriginal societies exist within, and are a part of, a broader social, political and economic community." The Court embraced examples of sufficient public objectives from previous decisions, which include the development of forestry, mining and hydroelectric power; general economic development; protection of the environment; and the building of infrastructure.

The "fiduciary obligation" can be discharged where the infringement on Aboriginal title is necessary to achieve the objective; the infringement does not go beyond what is necessary to achieve the objective; the benefits of achieving the objective are not outweighed by the adverse effects on the proven Aboriginal title; and the infringements do not deprive future generations of the benefit of the land.

Based on these principles, the Court in Tsilhqot'in found that:

Granting rights to third parties to harvest timber on Tsilhqot'in land is a serious infringement that will not lightly be justified. Should the government wish to grant such harvesting rights in the future, it will be required to establish that a compelling and substantial objective is furthered by such harvesting, something that was not present in this case.

While the regulation of resources under provincial laws may be a justifiable infringement on Aboriginal title, the allocation of resources to third parties on Aboriginal title lands will be difficult for the government to justify. In other words, the granting of rights to timber, minerals or water on Aboriginal title land to non-Aboriginal groups will be subject to intense scrutiny if the Aboriginal group has not provided its consent.

What to Expect Going Forward

Aboriginal groups, government and industry are all considering the implications of the decision for treaty negotiations, government-to-government agreements, public policy and resource allocation. While the general sense is that the decision will result in a significant departure from current practices, it will take time to determine exactly what the resulting changes will be.

In this vein, it is important to bear in mind that, while Tsilhqot'in addresses the process for, and implications of, proving Aboriginal title, no other First Nations have proved Aboriginal title as a result of the decision. In other words, the world has not changed overnight: the road to proving Aboriginal title will continue to be a lengthy one and the law that requires the government to consult with Aboriginal groups before Aboriginal title has been proved has not changed.

That said, it is reasonable to expect that the decision will have important implications for resource use in Canada, each of which raises significant questions about how the legal landscape in Canada has shifted. In the articles that will follow in this series, we will explore the following six important questions:

  • What does the law regarding Aboriginal title mean for controversial projects such as pipelines, mines and the oil sands?
  • How will project developers secure certainty for existing and future projects?
  • What are the implications for provincial and federal laws aimed at the regulation and conservation of natural resources?
  • What does Tsilhqot'in mean for existing treaties and the British Columbia treaty process?
  • How will private property be affected by claims to Aboriginal title?
  • Where do we go from here?

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

    By clicking Register you state you have read and agree to our Terms and Conditions