Supreme Court Declares Aboriginal Title In Tsilhqot'in Nation V. British Columbia

Tsilhqot'in Nation v. British Columbia1

More than 41 years ago, a six-member panel of the Supreme Court of Canada held in Calder v. BC2 that the concept of Aboriginal title exists under Canadian law. Now, for the first time in history, the Court has formally declared Aboriginal title to exist in a specified area of British Columbia historically occupied by the Tsilhqot'in people.

The ruling ends a complex and protracted legal journey which began in 1998 when the Tsilhqot'in Nation objected to British Columbia issuing third party logging authorizations in their traditional territory in the Chilcotin region of British Columbia.

Key findings

The Court has confirmed that Aboriginal title can exist over relatively broad areas of land that were subject to occupation at the time sovereignty was asserted. The term "occupation" means regular and exclusive use of land and is not necessarily limited to village sites. With the exception of clarifying what is required to establish occupation, the decision does not make significant changes to the law of Aboriginal title as it has come to exist over the last several decades. The decision makes clear that provincial laws apply on lands for which Aboriginal title is claimed or proven. In keeping with well-established law, federal and provincial governments continue to have a duty to consult and potentially accommodate in cases where Aboriginal title is asserted but not yet proven. Governments can infringe proven Aboriginal title, provided they meet the established tests for "justification". Background of case and Court decisions

The Tsilhqot'in Nation (Tsilhqot'in) is comprised of six Indian Act bands, one of which is the Xeni Gwet'in Indian Band.

In 1998, in response to proposed logging that had been authorized in the 1980s, Chief Roger William of the Xeni Gwet'in Indian Band brought an action, on behalf of the Tsilhqot'in, against the Province of British Columbia and the Government of Canada. The logging was to occur in the Trapline Territory – a region that the Tsilhqot'in claimed lay within the boundaries of their traditional territory.

William sought several declarations, including that:

the Tsilhqot'in hold Aboriginal title over 4,380 square kilometers of the region including the Tachelach'ed area and the Trapline Territory (Claim Area); the First Nations in the area hold Aboriginal rights to hunt and trap, to trade in skins and pelts taken from the Claim Area (as a means of securing a moderate livelihood), and to capture and use wild horses; and any forestry activity in the area unjustifiably infringed the existing Aboriginal rights. After a 339 day trial spanning five years in the BC Supreme Court, the trial judge accepted a "territorial theory" of establishing title and found title over 40% of...