Case Comment – Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

Introduction

On June 26, 2014 the Supreme Court of Canada (the "SCC") released its much anticipated decision in Tsilhqot'in Nation v. British Columbia1. The case is significant, in part, because it is the first SCC decision where the applicant, First Nation, successfully proved its claim to Aboriginal title. The case also provides further guidance for government and industry interested in new developments on lands that are subject to Aboriginal title. Overall, it is a logical and natural evolution of the jurisprudence developed by the SCC in cases such as Calder2, Guerin3, Sparrow4and Delgamuukw5.

Background

The Tsilhqot'in Nation (the "Tsilhqot'in") is a group of six indigenous semi-nomadic bands situated in British Columbia. In 1983, the Government of British Columbia granted a commercial logging licence for an area that the Tsilhqot'in considered part of their traditional territory. In lengthy reasons, which followed a 339-day trial spanning over a five-year period, the trial judge concluded that the Tsilhqot'in were entitled to a declaration of Aboriginal title for part of their claimed traditional land, but refused to make that declaration for procedural reasons.6 This territory potentially subject to Aboriginal title included not only village sites but also territories that the Tsilhqot'in's ancestors used regularly and exclusively for hunting, fishing and other activities.

The British Columbia Court of Appeal overturned the trial judge's decision but left open the possibility that the Tsilhqot'in could, in the future, bring a claim for Aboriginal title to certain specific sites with defined boundaries that were used intensively at the time of European sovereignty. Beyond those limited title claims, the Court of Appeal held that the Tsilhqot'in could exercise their established aboriginal rights.7

The Decision

Test for Aboriginal title

Writing for a unanimous Court , McLachlin CJC largely affirmed the SCC previous jurisprudence on the test for Aboriginal title. To establish a claim for Aboriginal title, the burden rests with the applicant to establish that, at the assertion of Crown sovereignty:8

Their ancestors occupied the lands in a manner sufficient to ground their claim, They have continuously occupied those lands since the assertion of sovereignty (if current occupation is relied upon to ground the title claim), and They have exclusively occupied and exercised effective control over the lands. The Court's approach to the first...