Historic SCC Ruling Grants Aboriginal Title To Lands in BC

By Theresa Arsenault, Q.C.
Categories: Blog, First Nations

On June 26, 2014, Chief Justice Beverley McLachlin of the Supreme Court of Canada delivered an historic, unanimous decision in the Williams/ Tsilhqot’in vs. BC case, granting a declaration that the Tsilhqot’in First Nation has aboriginal title to 1750 square kilometers of crown land near Williams Lake in the interior of BC. This decision resolves many important legal questions relating to establishing aboriginal title, and clarifies to what degree provincial laws apply to lands held by first nations under aboriginal title. This decision is of particular importance to BC because so little of BC is covered by treaties, unlike the rest of Canada.

The case began in 1983 when the province of BC granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory. The Tsilhqot’in Nation consists of 6 bands who had for centuries lived a semi-nomadic life on the land in question, and who had protected their lands from outsiders. The Tsilhqot’in objected to the granting of the logging licence on their traditional territory, and commenced action in the BCSC. Thirty-one years later, the matter has finally reached a decision at the highest court in Canada.

To establish aboriginal title, the first nation must establish sufficient, continuous and exclusive occupation of the land. Occupation is not confined to specific sites of settlement, but can extend to areas that were regularly used for hunting, fishing or other use of resources, and over which the first nation exercised effective control at the time of assertion of European sovereignty. Aboriginal title gives the first nation the right to decide how the land is used and the right to benefit from its uses as a group.

In areas where aboriginal title has been claimed, but has not yet been determined by the court or by agreement, the province is required to consult in good faith with any aboriginal groups claiming title to the land, and, if appropriate to accommodate their interests. The degree of consultation and accommodation depends on the strength of the claim to title and the potential adverse effect on the interest claimed.

Where aboriginal title has been established, the province must not only consult and accommodate the interests of the first nation, but must also have a compelling public purpose, and the government’s action must be consistent with its fiduciary duty to the first nation. The benefits must outweigh the adverse effects on the aboriginal interests. Consent by the first nation will satisfy these requirements.

The SCC also confirmed that provincial laws of general application will apply to aboriginal title lands unless the provincial law creates undue hardship or denies the holder of rights their preferred means of exercising that right. The effect is that the province can regulate forests on aboriginal title land in BC, subject to constitutional constraints.

This decision will have far reaching effects on all resource development in BC, including forestry, mining, oil and gas, and on general developments on crown lands. It will undoubtedly create a new sense of urgency in resolving aboriginal title issues.

For the full decision please see Tsilhqot’in Nation v. British Columbia

Theresa may be contacted at 250-869-1110 (direct line) or arsenault@pushormitchell.com.

*Providing services through a law corporation