Tsilhqot’in Nation v. British Columbia: Is It a Game Changer in Canadian Aboriginal Title Law and Crown-Indigenous Relations?

Bradford W. Morse

Abstract


The watershed Supreme Court of Canada (SCC) decision in Tsilhqot’in Nation has dramatically enhanced what it means to have Aboriginal title in Canada, and has significant impacts on both federal and provincial governments. Aboriginal title has been a longstanding unresolved legal issue in Canada, with a number of rulings from all levels of courts attempting to give some shape to its scope. Delgamuukw in 1997 provided a test for determining Aboriginal title, but could not apply it due to errors at trial and instead remitted the case to the British Columbia Supreme Court for a rehearing. In Tsilhqot’in Nation, the SCC created a test that is more holistic in nature, and one which many Indigenous communities have the capacity to satisfy as the return to Delgamuukw means intensive occupation in village-like terms is not required. Although the ruling in Tsilhqot’in Nation is a step forward for Canadian relations with First Nations, Inuit, and Métis peoples, it still leaves many questions unanswered. There are grave concerns regarding when Aboriginal title can be overridden, and how overlapping land claims will be resolved. Tsilhqot’in Nation has helped inform what results must emanate from these negotiations, but has not provided a complete answer to the significance of Aboriginal title in Canada’s future. While the initial fears voiced by some natural resource companies shortly after the decision have subsided somewhat, and their direct engagement in seeking accommodations with likely Aboriginal title holders has increased, concerns about sustaining existing projects and pursuing proposed new ones remain. Federal and provincial governments have demonstrated relatively little movement to date in their legislation and negotiation positions; however, this too may change as implementation of the full effect of Tsilhqot’in Nation becomes more evident.

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