''Tsilhqotʼin Nation v British Columbia'' is a landmark decision of the

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

that established Aboriginal land title for the

Tsilhqotʼin The Tsilhqotin or Chilcotin ("People of the river", ; also spelled ''Tsilhqutin, Tŝinlhqotin, Chilkhodin, Tsilkótin, Tsilkotin'') are a First Nations in Canada, North American tribal government of the Northern Athabaskan languages, Athabask ...

First Nation, with larger effects. As a result of the landmark decision, provinces cannot unilaterally claim a right to engage in clearcut logging on lands protected by Aboriginal title; they must engage in meaningful consultation with the title holder before they proceed. Although the Aboriginal title holder does not have to consent to the activity, meaningful consultation is required before infringement of the right can take place.

Background

In 1983, the province of

British Columbia British Columbia is the westernmost Provinces and territories of Canada, province of Canada. Situated in the Pacific Northwest between the Pacific Ocean and the Rocky Mountains, the province has a diverse geography, with rugged landscapes that ...

issued a licence to Carrier Lumber to cut trees in lands that included remote central British Columbia territory which was claimed by the Xeni Gwetʼin band of the Tsilhqotʼin. The Tsilhqotʼin are a semi-nomadic group of

First Nations First nations are indigenous settlers or bands. First Nations, first nations, or first peoples may also refer to: Indigenous groups *List of Indigenous peoples *First Nations in Canada, Indigenous peoples of Canada who are neither Inuit nor Mé ...

people who had lived in the area for centuries, managing these lands and repelling invaders. The Xeni Gwetʼin blockaded the area, preventing Carrier from logging. The company conducted unsuccessful negotiations with the provincial government to continue logging. The Xeni Gwetʼin filed suit seeking a court declaration that would prohibit Carrier Lumber's commercial logging operations in this area, and establish their claim for Aboriginal title to the land, which was part of their historical territory.

Lower courts

At trial, which lasted five years, both the federal and provincial governments opposed the title claim. The trial judge applied a test for Aboriginal title that examined whether the Xeni Gwet'in regularly and exclusively used the sites or territory within the claim area. The trial judge rejected the title claim for procedural reasons. In 2012, the decision was appealed to the

British Columbia Court of Appeal The British Columbia Court of Appeal (BCCA) is the highest appellate court in the Provinces and territories of Canada, province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act. Jurisdiction The ...

, where the court upheld the decision that the Tsilhqotʼin did not hold title to these lands, except for limited situations. The court applied a more stringent title test that examined site-specific occupation of definite tracts of land at the time of European sovereignty.

Decision of the Supreme Court

The Supreme Court, led by

Beverly McLachlin Beverley Marian McLachlin (born September 7, 1943) is a Canadian jurist and author who served as the 17th chief justice of Canada from 2000 to 2017. She is the longest-serving chief justice in Canadian history and the first woman to hold the p ...

, unanimously allowed the appeal. They ruled that the Tsilhqotʼin did have a claim of Aboriginal title to the they had historically occupied.

Aboriginal title

The court held that Aboriginal title constitutes a beneficial interest in the land, the underlying control of which is retained by the Crown. Rights conferred by Aboriginal title include the right to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use and manage the land, including its natural resources. But, the court set out a '' Sparrow''-style mechanism by which the Crown can override Aboriginal title in the public interest: # the Crown must have carried out consultation and accommodation; # the Crown's actions must have been supported by a compelling and substantial objective; and # the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question.SCC, para 77

References

External links