The Supreme Court of Canada (SCC) by unanimous decision on June 26, 2014 in the case of Tsilhqot' in Nation v. British Columbia declared for the first time "Aboriginal title" in Canada for the Tsilhqot'in Nation over tract of land in the interior of British Columbia. This case furthers a long line of decisions on Aboriginal rights and title.
In Tsilhqot'in, the SCC prescribes the meaning of Aboriginal title and articulates new tests for establishing it. The decision lacks clarity on the practical application of its ruling. The result, at least in the short run, is uncertainty, and additional clarity from the courts will be required. In the meantime, if major projects are to proceed, a much higher level of cooperation among First Nations, government and project proponents will be required.
In brief, Aboriginal title confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with communal ownership of the interest and must assume the continued enjoyment of the land by future generations. Government infringement of Aboriginal title is theoretically possible in certain circumstances, but court challenges on this aspect are likely to abound.
The implications of the case are significant and the impacts cannot yet be determined. It seems clear however, that in addition to observing established duties of consultation and accommodation, it will be prudent for governments, going forward, to obtain consent of each First Nation which has a potential Aboriginal title claim in respect of Crown lands which are proposed for development or in respect of a disposition of any interest is proposed in British Columbia.
Further analysis of the decision and its impact on the BC energy sector to follow.
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