Tsilhqot'in: Historic Ruling, but may not be the Game Changer Many Suggest
Bryn E. Gray1
Since the release of the Supreme Court of Canada's (SCC's) decision in Tsilhqot'in Nation v. British Columbia,2 there has been much debate and unease about its implications for mining and other resource development in Canada. The decision is undeniably historic as it is the first time a Canadian court has made a declaration of Aboriginal title. It is also significant because the SCC clarified the test for Aboriginal title in a way that could make it easier to establish title to larger portions of land.
But is this decision a game changer for mining and resource development in Canada as some suggest? Will it lead to a flood of Aboriginal title litigation and stop projects that do not have the consent of affected Aboriginal groups?
While the dust is still settling, it is likely not the game changer many suggest. There will certainly be implications for some proposed mining projects, particularly because the decision and its many unanswered questions create uncertainty. However, the uncertainty is not one-sided. There are many questions that remain about how an Aboriginal group may be impacted by the restrictions of Aboriginal title, particularly its limitations on future use. This uncertainty, coupled with the difficulty of proving title, the cost and time associated with title litigation, and the benefits that can be obtained through treaty negotiations, make it unlikely that there will be a fulrry of Aboriginal title declarations or that a large number of Aboriginal groups will rigorously pursue Aboriginal title claims over the long haul. Without such title declarations, the key rules of the game will remain the same: the procedural duty to consult will continue to apply and Aboriginal groups will not have a veto over a project on the basis of an asserted title claim.3
Overview of the Decision
The Tsilhqot'in Nation (Tsilhqot'in) is a semi-nomadic group of six First Nation bands that have lived in a remote area of west central B.C. for centuries. In the course of a commercial logging dispute, the Tsilhqot'in sought a declaration of Aboriginal title over approximately 4,380 square kilometres (five percent) of their traditional territory. After a 339-day trial spanning more than five years, the trial judge held that the Tsilhqot'in were entitled to a declaration of Aboriginal title over a portion of the claim area, but declined to make the declaration for procedural reasons. The British Columbia Court of Appeal (BCCA) allowed the appeal and held that Aboriginal title had not been established because there was insuffcient evidence of intensive occupation or regular presence on specific tracts of land.
The SCC overturned the BCCA decision and granted a declaration of Aboriginal title to over 1,750 square kilometres of territory, which is approximately two percent of the Tsilhqot'in's traditional territory. In doing so, the SCC clarified the test for Aboriginal title first set out in Delgamuukw v. British Columbia,4 holding that the following three characteristics must be established:
(i) suffcient pre-sovereignty occupation;
(ii) continuous occupation (where present occupation is relied upon as proof of pre-sovereignty occupation); and
(iii) exclusive occupation of the land at the time of sovereignty.5
Unlike the BCCA, the SCC held that Aboriginal title was not confined to specific sites of settlement or intensively used tracts of land, such as historic village sites. Instead, it can extend to tracts of land that were regularly used for hunting, fishing, or foraging provided that the group exercised effective control over the land at the time of the assertion of European sovereignty. The SCC clarified that occupation is a context-specific inquiry that must be looked at through the lens of both the common law and Aboriginal perspective. The latter must take into account the Aboriginal group's "laws, practices, size, technological ability and the character of the land."6
The SCC also confirmed that Aboriginal title confers rights similar to fee simple ownership, with the exception that (i) it is collectively held (ii) it cannot be alienated except to the Crown, and (iii) it cannot be encumbered, developed or misused "in a way that would substantially deprive future generations of the benefit of the land."7
If Aboriginal title is established, the SCC held that the Crown must either seek the consent of the Aboriginal group for developments on the land, or meet the "justification test." This requires the Crown to demonstrate that (i) it discharged its procedural duty to consult and accommodate, (ii) its actions were backed by a compelling and substantial objective, and (iii) the Crown action is consistent with the Crown's fiduciary obligation to the Aboriginal group.
Importantly, the Tsilhqot'in's claim before the SCC was only with respect to Crown land. The trial judge did find that Aboriginal title had been proven to a small portion of private lands but this was not pursued by the Tsilhqot'in before the SCC. The question of whether Aboriginal title can be established to private property, and the scope of potential remedies, has not been determined by the courts. While the SCC has not yet been faced with a specific decision requiring the resolution of conflicting third-party interests and Aboriginal title, based on the case law to date, the SCC would likely adopt a very cautious approach to this issue by crafting remedies that balance competing interests and may provide for some level of financial damages against the Crown, while limiting the impact on third-party interests wherever possible.8
1. The author gratefully acknowledges the contributions of Stephanie Axmann.
2. 2014 SCC 44.
3. Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R 511 at para. 48.
4.  3 S.C.R. 1010.
5. Tsilhqot'in at paras. 25-26, 45 & 47.
6. Tsilhqot'in at para. 42.
7. Tsilhqot'in at paras. 73-74.
8. See for example, Chippewas of Sarnia Band v. Canada,  O.J. No. 4084 (C.A.).
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