Canada: Tsilhqot’in Nation

Last Updated: February 23 2015
Article by Grant McGlaughlin

Two recent Supreme Court of Canada decisions provide guidance on how provincial governments must proceed when engaging in resource development on lands subject to Aboriginal title or to treaty agreements.

Tsilhqot'in Nation – Aboriginal Title

Tsilhqot'in Nation v British Columbia1. represents the first time that a claim for Aboriginal title has been successful. However, this case is just the latest in a series of decisions on Aboriginal title dating back to Calder2. from the early 1970's. At issue was whether the province of British Columbia had acted in accordance with the law when it granted a commercial logging license to lands claimed by the Tsilhqot'in Nation. The Court held that the lands in question were covered under Aboriginal title, and that the Province had failed to properly consult and accommodate the Aboriginal group. The Court also clarified a number of issues surrounding Aboriginal title, including its content, the test for establishing it, how development on Aboriginal title lands can proceed, and whether provincial laws can apply to those lands.

What is "Aboriginal Title?"

The Supreme Court first described the content of Aboriginal title in the landmark decision Delgamuukw.3. Aboriginal title derives from the use and occupation of land prior to the European assertion of sovereignty. This title amounts to a burden on the Crown's underlying title to land, giving rise to a fiduciary duty owed by the Crown. This unique relationship grantsrights similar to the common law concept of fee simple, including 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."4. The key difference between Aboriginal title and a fee simple interest is that the use of the land must conform to the communal nature in which the land is held; namely that it is held not only for present generations, but for future generations as well. Therefore, land to which Aboriginal title attracts cannot be alienated, or sold, except to the Crown, and it cannot be used in a way that would prevent future generations from enjoying its use. There are no definitive answers regarding the specific uses to which the land may put; this will depend on the facts of each case. It is clear, however, that although Aboriginal title derives from a pre-sovereignty relationship to the land, Aboriginal groups are still free to use the land in modern ways.

The Test for Aboriginal Title

Due to the historical nature of Aboriginal title, the test for establishing a claim focuses on the nature of the occupation of the land prior to the European assertion of sovereignty. The Aboriginal group must demonstrate that it enjoyed sufficient occupation of the land prior to sovereignty. Where present occupation is relied on to demonstrate pre-sovereign occupation, it must be demonstrated that the group's occupation was continuous. However, it is not necessary to demonstrate a perfectly unbroken chain of occupation. Furthermore, it must be established that the occupation was exclusive. To meet the criteria of exclusivity, it must be demonstrated that prior to the assertion of sovereignty the Aboriginal group had the intention and capacity to control the land.5. Sufficient occupation is to be assessed using both the common law and Aboriginal perspectives. Ultimately, it must be established that the land was used in such a way that third parties would know the land was held for the Aboriginal group's own purposes.6. This inquiry must reflect the nature of the Aboriginal group, as well as the characteristics of the land itself. The Supreme Court rejected the site specific approach previously used by the Court of Appeal,7. and found that even semi-nomadic groups could demonstrate sufficient occupation of large tracts of land. Further, it found that even a group unable to demonstrate the occupation sufficient to make out a claim of Aboriginal title may still be able to claim specific Aboriginal rights over the land, such as the right to hunt.

Development on Aboriginal Title Lands

Aboriginal title requires that any incursion on the land must be made with the consent of the title holders, or it must be justified under section 35 of the Constitution Act, 1982. The government must demonstrate that, in making the incursion, it has first discharged its procedural duty to consult, and, if necessary, that it has accommodated the Aboriginal group. The extent of this duty depends on the strength of the Aboriginal title claim. A dubious claim to land may only trigger a procedural requirement to notify the group in question of any planned incursions. On the other hand, if title is established, the government will have the more onerous obligation to either obtain the group's consent or demonstrate that the incursion represents a compelling and substantial objective, and that the government's actions are consistent with the Crown's fiduciary duty. The extent of the requirements of consultation and accommodation may vary in each case as the Aboriginal group moves from first making a claim of title, to eventually having title established by the court. It may be necessary to engage in increasing levels of accommodation as the claim progresses.

The requirement for a compelling and substantial objective must be considered from the Aboriginal group's perspective as well as the broader public's perspective.8. A wide range of interests may justify an intrusion on Aboriginal title, including the development of agriculture, mining, hydroelectric power, general economic development, and the building of infrastructure. As mentioned, any incursion must also be consistent with the Crown's fiduciary obligations to the Aboriginal group. Because Aboriginal title is a group interest, any incursion must not substantially deprive future generations of the benefit of the land. Furthermore, the Crown's incursion on Aboriginal title must be necessary to achieve the government's goal, it must go no further than necessary to achieve the goal, and the benefits of the goal must not be outweighed by the adverse effects on the Aboriginal interest.

There may be serious consequences if the government fails to comply with these requirements. Once Aboriginal title has been established, the government cannot grant projects, proceed with development, or pass legislation that has not either received consent of the impacted Aboriginal group or conformed to the above requirements. Even if Aboriginal title has been established after a project has already been granted, it may be necessary to cancel the project unless the government can obtain consent of the Aboriginal group.

Provincial Laws and Aboriginal Title

Although it was unnecessary to dispose of the appeal, the Supreme Court clarified that provincial laws of general applicability can apply to lands held under Aboriginal title. However, these laws must also be justified in accordance with the Crown's fiduciary duty to Aboriginal peoples.

Unanswered Questions

Although the Supreme Court clarified many issues surrounding Aboriginal title, two central questions remain unanswered. First, it is unclear how Aboriginal title would apply to privately held lands. The Tsilhqot'in Nation only made claims to provincially-owned lands, and did not argue that it had title over the privately held lands in the area. Second, the Supreme Court specified that once Aboriginal title has been declared, previously granted projects may need to be cancelled - but there was no discussion as to whether damages may be claimed as well. Both these issues will likely result in future litigation.

Grassy Narrows First Nation – Treaty Agreements

Unlike the lands under dispute in Tsilhqot'in Nation, the land at issue in the Grassy Narrows First Nation v Ontario (Natural Resources)9 decision was covered under a historic treaty, Treaty 3. At issue was whether Ontario could grant a commercial logging license without the approval of the Federal Government.

Treaty 3 was signed by treaty commissioners acting on behalf of the Dominion of Canada, and Chiefs of the Ojibway, in 1873. Since that time, some of the lands covered under the treaty were transferred from Canada to the Province of Ontario. The treaty granted the Ojibway people rights to the land in question, including harvesting rights, subject to the government's ability to "take-up" the lands for development. The Grassy Narrows First Nation, descendants of the Ojibway, argued that a forestry license granted by the Province infringed their harvesting rights, and could therefore only be granted with Federal Government approval.

The Province May Exercise Rights as the Crown Under the Treaty

The Supreme Court held that although the treaty was negotiated by the Federal Government, it is an agreement between the Ojibway people and the Crown. The level of government that performs the rights and obligations is determined by the Constitution. Because section 92 of the Constitution Act, 1987, grants exclusive authority to the provinces to take-up provincial land for forestry, mining, and settlement, it was not necessary for the Province to consult with the Federal Government before taking-up the lands.

The Crown's Fiduciary Duties

Provinces are subject to the fiduciary duties owed by the Crown to Aboriginal peoples. In exercising its ability to take-up lands, a province must respect the rights granted to the Aboriginal people under the treaty. This includes informing itself of a project's impact on the Aboriginal group's ability to exercise their rights, and then communicating the province's findings to the Aboriginal group. The province must deal with the group in good faith and with the intention of addressing their concerns. The degree of accommodation is commensurate with the adverse impact of the project. Any action by a province which prevents the group from exercising their rights in a meaningful way could lead to an action for treaty infringement.


1. 2014 SCC 44 [Tsilhqot'in Nation].

2. Calder v British Columbia, [1973] S.C.R. 313.

3. Delgamuukw v British Columbia, [1997] 3 S.C.R. 1010.

4. Tsilhqot'in Nation at para 73.

5. Tsilhqot'in Nation at para 48.

6. Tsilhqot'in Nation at para 38.

7. Tsilhqot'in Nation v British Columbia, 2006 BCCA 2.

8. Tsilhqot'in Nation at para 81.

9. 2014 SCC 48 [Grassy Narrows First Nation].

The content of this article does not constitute legal advice and should not be relied on in that way. Specific 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