Supreme Court Of Canada Grants Tsilhqot’in Aboriginal Title In William – Implications For Resource Development In Canada

The Supreme Court of Canada issued a ground-breaking declaration of Aboriginal title on June 26, 2014. The Court's decision in Roger William (on behalf of the Tsilhqot'in Nation) v BC marks the first time that a court has granted Aboriginal title to a specific land area in Canada1 - in this case, over a remote valley in central British Columbia. The Court also found that British Columbia breached its duty to consult when it made land use planning decisions and issued forestry licences over the lands where title was claimed by the Tsilhqot'in First Nation. This decision provides both a road map for Aboriginal title claims and key signposts for other cases respecting treaties and land claims. It also sends a clear signal that government cannot ignore questions about Aboriginal title when taking actions such as issuing permits. The application of this case in the treaty context will be clearer after the SCC delivers its decision on Keewatin,2, expected on July 11.

Reaction to the Supreme Court of Canada's (SCC) decision has been swift. Commentators have labelled it a "legal earthquake", a "game-changer" and, in one instance, predicted that "chaos" would result. For people who have been following SCC rulings since the Calder decision in 1973,3 this decision is simply the next chapter in a series of judicial decisions that increasingly require government to fulfill its obligations towards Aboriginal peoples in a timely way to lead to meaningful reconciliation.

Some commentators suggest that this decision could lead to a chill in resource development projects. However, business has recognized for some time that forming partnerships with affected Aboriginal groups is a pre-requisite for project success. The William decision simply underscores the need for Aboriginal consent, particularly where Aboriginal title has been established.

Background

The Tsilhqot'in is made up of six bands in British Columbia. For centuries they occupied a remote valley in central B.C. The Crown has entered into modern land claims with some of the indigenous people of B.C. but the Tsilhqot'in are not party to either a treaty or a land claim. In 1983, with their lands still subject to an unresolved land claim, B.C. granted a commercial logging licence for activities on the area considered by the Tsilhqot'in to be their traditional territory. The Tsilhqot'in objected.

Talks with the province broke down when the Xeni Gwet'in (one of the six bands comprising the Tsilhquot'in) claimed a right of first refusal to logging. In 2002, the Tsilhqot'in added a claim for Aboriginal title to the land claim and the parties went to court. The federal and provincial governments opposed the title claim. After a complex trial which lasted five years, the trial judge found enough evidence to award Aboriginal title over the land, but rejected the Tsilhqot'in claim due to a procedural matter.

The British Columbia Court of Appeal (BCCA), on appeal, rejected the claim for Aboriginal title based on the evidence that the Tsilhqot'in were "semi-nomadic" (see "BC Appeal Court Tightens Grounds for Aboriginal Title Claims", Willms & Shier Report, September 2012). The BCCA found that a claim for Aboriginal title could only be granted for specific, intensively occupied areas, and that the area claimed by the Tsilhqot'in was too broad. The BCCA recognized...