Aboriginal title declared in historic SCC decision, Tsilhqot’in Nation v. British Columbia
On June 26, 2014, the Supreme Court of Canada (SCC) released its highly anticipated decision in Tsilhqot’in Nation v. British Columbia. In this ground-breaking decision, Canada’s highest court granted a declaration of Aboriginal title over a tract of Crown lands to the Tsilhqot’in Nation (Tsilhqot’in) of the west central interior of British Columbia. This is the first time in Canadian history that Aboriginal title has been definitively established and affirmed.
In allowing the appeal of the Tsilhqot’in from the decision of the British Columbia Court of Appeal (BCCA) in William v. British Columbia, the SCC has: (a) clarified the law as it pertains to the establishment of Aboriginal title and the nature of such title; (b) addressed how the establishment of Aboriginal title affects the Crown’s duty to consult with Aboriginal peoples; and (c) clarified how provincial (and federal) legislation may apply to lands subject to Aboriginal title, and if necessary, infringements may be justified.
From a practical perspective, proponents of resource projects can expect an increased focus by governments on the strength of an Aboriginal claim to title as part of the consultation process. For projects on lands subject to a strong case for Aboriginal title, governments are likely to seek to further insulate their decisions by carrying out more extensive consultation and accommodation discussions with Aboriginal groups. There will almost certainly be increased pressure on both governments and proponents to reach agreements on resource projects that may infringe on Aboriginal title. Where an agreement cannot be reached, proponents can expect governments to engage in a much more deliberate balancing of the public policy rationale for pursuing resource development.
While questions remain, this decision provides additional clarity in a critical area of law. It affirms the scope of provincial jurisdiction and resolves a long-standing question about the circumstances in which government can justifiably infringe Aboriginal title. Finally, the decision provides further guidance to government, Aboriginal groups and proponents at an important time for the development of natural resources in Canada.
Read more about this decision here.