Tsilhqot’in Nation

Two recent Supreme Court of Canada decisions provide guidance on how provincial governments must proceed when engaging in resource development on lands subject to Aboriginal title or to treaty agreements.

Tsilhqot'in Nation – Aboriginal Title

Tsilhqot'in Nation v British Columbia1. represents the first time that a claim for Aboriginal title has been successful. However, this case is just the latest in a series of decisions on Aboriginal title dating back to Calder2. from the early 1970's. At issue was whether the province of British Columbia had acted in accordance with the law when it granted a commercial logging license to lands claimed by the Tsilhqot'in Nation. The Court held that the lands in question were covered under Aboriginal title, and that the Province had failed to properly consult and accommodate the Aboriginal group. The Court also clarified a number of issues surrounding Aboriginal title, including its content, the test for establishing it, how development on Aboriginal title lands can proceed, and whether provincial laws can apply to those lands.

What is "Aboriginal Title?"

The Supreme Court first described the content of Aboriginal title in the landmark decision Delgamuukw.3. Aboriginal title derives from the use and occupation of land prior to the European assertion of sovereignty. This title amounts to a burden on the Crown's underlying title to land, giving rise to a fiduciary duty owed by the Crown. This unique relationship grantsrights similar to the common law concept of fee simple, including the right to "possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land."4. The key difference between Aboriginal title and a fee simple interest is that the use of the land must conform to the communal nature in which the land is held; namely that it is held not only for present generations, but for future generations as well. Therefore, land to which Aboriginal title attracts cannot be alienated, or sold, except to the Crown, and it cannot be used in a way that would prevent future generations from enjoying its use. There are no definitive answers regarding the specific uses to which the land may put; this will depend on the facts of each case. It is clear, however, that although Aboriginal title derives from a pre-sovereignty relationship to the land, Aboriginal groups are still free to use the land in modern ways.

The Test for Aboriginal Title

Due to the...