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

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

that established

Aboriginal land title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...

for the

Tsilhqotʼin The Tsilhqotin or Chilcotin ("People of the river", ; also spelled ''Chilcotin'', ''Tsilhqutin, Tŝinlhqotin, Chilkhodin, Tsilkótin, Tsilkotin'') are a North American tribal government of the Athabaskan-speaking ethnolinguistic group that li ...

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 (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...

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 The Xeni Gwet'in, also known as the Stone Chilcotin, are a First Nations people whose traditional territory is located in the southern Chilcotin District of the Canadian province of British Columbia, on the inland flank of the Coast Mountains west o ...

band of the Tsilhqotʼin. The Tsilhqotʼin are a semi-nomadic group of First Nations 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, 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, 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 Sparrow may refer to: Birds * Old World sparrows, family Passeridae * New World sparrows, family Passerellidae * two species in the Passerine family Estrildidae: ** Java sparrow ** Timor sparrow * Hedge sparrow, also known as the dunnock or hedg ...

''-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