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Case comment — Tsilhqot'in Nation v British Columbia, 2014 SCC 44

On 26 June 2014, the Supreme Court of Canada (SCC) released its much anticipated decision in Tsilhqot’in Nation v British Columbia. The case is significant, in part because it is the first SCC decision where the applicant, First Nation, successfully proved its claim to Aboriginal title. The case also provides further guidance for government and industry interested in new developments on lands that are subject to Aboriginal title. Overall, it is a logical and natural evolution of the jurisprudence developed by the SCC in cases such as Calder, Guerin, Sparrow and Delgamuukw.

The Tsilhqot’in Nation is a group of six indigenous semi-nomadic bands situated in British Columbia. In 1983, the government of British Columbia granted a commercial logging licence for an area that the Tsilhqot’in considered part of its traditional territory. In lengthy reasons, which followed a 339-day trial spanning over a five-year period, the trial judge concluded that the Tsilhqot’in was entitled to a declaration of Aboriginal title for part of its claimed traditional land, but refused to make that declaration for procedural reasons. This territory potentially subject to Aboriginal title included not only village sites but also territories that the Tsilhqot’in’s ancestors used regularly and exclusively for hunting, fishing and other activities.

The British Columbia Court of Appeal overturned the trial judge’s decision but left open the possibility that the Tsilhqot’in could, in the future, bring a claim for Aboriginal title to certain specific sites with defined boundaries that were used intensively at the time of European sovereignty. Beyond those limited title claims, the Court of Appeal held that the Tsilhqot’in could exercise its established aboriginal rights…

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