Tsilhqot’in Decision of the Supreme Court of Canada, 2014

… a core concept in Governance and Institutions and Atlas100

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Concept description

The Tsilhqot’in Decision of the Supreme Court of Canada (2014, reference below, link to decision on right) deals with definition, the content, and the extent, of Aboriginal Title.

Summary

Robert Lane and Zach Parrott (reference below) summarizes the case as follows:

“On 26 June 2014, the Supreme Court of Canada ruled unanimously in favour of Chief Roger William, acting on his own behalf and on the behalf of all members of the Tsilhqot’in Nation, granting Aboriginal title to 1700 km2 of land traditionally inhabited by the Tsilhqot’in. The ruling gives the Tsilhqot’in exclusive right to use and enjoy the land, as well as any benefits and profits derived therefrom. Any economic development on the land will require the consent of the Tsilhqot’in Nation.

“The case, officially known as Tsilhqot’in Nation v. British Columbia, stemmed from a commercial logging licence on Xeni Gwet’in territory granted by the British Columbia government in 1983. After a blockade, negotiations began but were derailed over the Tsilhqot’in desire for the right of first refusal to logging activities. After talks broke down, the Tsilhqot’in amended their original claim to include Aboriginal title in 1998.

“Justice David Vickers of the Supreme Court of British Columbia ruled in favour of the Tsilhqot’in on 20 November 2007, only to have the judgement overturned on appeal in June 2012. On further appeal, the Supreme Court of Canada agreed with Vickers that the land had been both continually occupied and defended for the exclusive use of the Tsilhqot’in and that the government’s appeal had been based on the “erroneous thesis that only specific, intensively occupied areas can support Aboriginal title.”

“The ruling is significant in that it clarified the requirements for establishing Aboriginal title. The criteria for Aboriginal title are threefold, in short: an Aboriginal group must first prove occupation, and then must prove continuity and exclusivity of said occupation.”

Potential impact

For the potential impact, see the analysis of Harry Swain and James Baillie (references below, and excerpted in Aboriginal Title).

Sources

Supreme Court of Canada, Tsilhqot’in Nation v. British Columbia, 2014, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do, accessed 2 October 2016.

Robert Lane and Zach Parrott (2015), Tsilhqot’in (Chilcotin), Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/chilcotin-tsilhqotin/, accessed 2 October 2016.

Harry Swain and James Baillie (2015), Commentaries: Tsilhqot’in Nation v. British Columbia: Aboriginal Title and Section 35, to appear in Canadian Business Law Journal, University of Victoria, Centre for Global Studies, at https://www.uvic.ca/research/centres/globalstudies/publications/publicationsdb/pubs/tsilhqotin-nation-v-british-columbia.php, accessed 2 October 2016 and uploaded to the Atlas at http://www.atlas101.ca/pm/wp-content/uploads/2016/10/Swain-and-Baillie-Tsilhqotin-case-review-2015.pdf. See also Harry Swain and James Baillie (2015), Quagmire in our native land – Parliament must act to mitigate the disastrous consequence of judge-made law, Financial Post, 4 February 2015, at http://business.financialpost.com/fp-comment/quagmire-in-our-native-land, accessed 2 October 2016.

Harry Swain (2016), Paths to reconciliation in the post-Tsilhqot’in world, Privy Council Office seminar on aboriginal law and policy, Ottawa, 4 April 2016, uploaded to the Atlas by permission of the author at http://www.atlas101.ca/pm/wp-content/uploads/2016/04/Harry-Swain-2016-Paths-to-reconciliation.pdf. 

Topic, subject and Atlas course

Indigenous Governance in Governance and Institutions and Atlas100.

Page created by: Ian Clark, last modified 10 February 2017.

Image: Supreme Court of Canada, Tsilhqot’in Nation v. British Columbia, 2014, Supreme Court Judgments, at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do, accessed 2 October 2016.