SCC Sets Test for – and Defines Rights of – Aboriginal Title in Canada in Tsilhqot’in Nation v. B.C.

On June 26, 2014, in a groundbreaking decision on Aboriginal title, the Supreme Court of Canada (SCC) significantly elaborated on the legal test for Aboriginal title in Canada – and decided that where there is Aboriginal title to land, the government must seek the consent of the title-holding Aboriginal group to proceed with developments on that land.

In 1983, the BC Government issued logging licences under the BC Forest Act to a private company. The Tsilhqoti’in Nation asserted an Aboriginal title claim to land covered by those licences.  The SCC decided the Aboriginal title claim was valid – and 30 years later, the licences were not. In the course of its decision, the SCC significantly developed the law of Aboriginal title in Canada:

• Test. The test for Aboriginal title is based on sufficient, continuous and exclusive occupation by a First Nation prior to European sovereignty and does not bar nomadic and semi-nomadic people from proving an Aboriginal title claim. A court should emphasize integration of Canadian common law and Aboriginal perspectives in applying this test.
• Territorial Scope. The SCC confirmed that Aboriginal title is not necessarily confined to specific settlement sites, but may extend to tracts of land that Aboriginal peoples regularly used prior to European sovereignty.
• Duty to Consult. The SCC also confirmed that where Aboriginal title is asserted, but not yet confirmed by court declaration or by agreement, the Crown still owes the duty to consult with the First Nations.
• Control of Land. The SCC decided that once a First Nation has established Aboriginal title, the title holders have “the right to determine, subject to the inherent limit of group title held for future generations, the uses to which land is put and to enjoy its economic fruits” – in effect that the government must seek consent of the title-holding Aboriginal group to proceed with developments on that land.  Governments must also ensure that they apply or update any legislation, regulations and policies that may affect that land so they don’t unjustifiably infringe the Aboriginal title.
• Application. These principles apply equally to Federal and Provincial government actions and lands.

The SCC’s decision will likely have significant impact on:

• First Nations. First Nations communities and Aboriginal rights holders now have a better idea of what they must prove to establish Aboriginal title in land – and what rights they get if they do establish it.
• Government. Provincial and Federal governments have a clearer picture of how to assess an asserted Aboriginal title claim, how to respond to it – and how to deal with a proven one.
• Industry. Resource rights holders should reassess their rights (such as licences, approvals, permits, government leases and agreements) by considering whether they could infringe on any Aboriginal rights, including Aboriginal title – and whether they are valid today as they were yesterday.

Read the SCC’s decision in Tsilhqot’in Nation v. B.C., 2014 SCC 44.

For more on the impact of this decision, read McInnes Cooper’s The Changing Face of Aboriginal Law – 1 Short Year, 2 Big Court Decisions, 3 Key Implications for the Energy & Natural Resources Sector.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Aboriginal Law Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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