The decision by the Supreme Court of Canada to grant British Columbia’s Tsilhqot’in nation title over a portion of their ancestral lands marks the first time Aboriginal title has been formally recognized in Canada. Gowlings law firm calls it “one of the most significant Aboriginal law cases in Canadian history” and a blog at West Coast Environmental Law calls the decision “a watershed moment”.
Notably, the decision clarifies the test for whether an indigenous group has title over an area, including such criterion as occupation prior to the Crown assertion of sovereignty and continuous occupation since. In particular, the case established that “nomadic or semi-nomadic” land use, such as that of the Tsilhqot’in, does not preclude title.
It also offers some explanation about what legal rights and responsibilities title entails, such as decision-making power over how the land will be used, the right to derive economic benefits from the land and to use and manage it. Yet considerable uncertainty remains about resource extraction or other projects espoused by the government. The decision stops short of requiring consent, but recommends seeking consent from title-holders prior to project approval.
The West Coast Environmental Law blog offers an analysis of the text of the decision and how it may impact pipeline development in B.C. See the Supreme Court decision at: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do; subsequently, the B.C. government announced a letter of agreement with the Tsilhqot’in in a press release at: http://www.newsroom.gov.bc.ca/2014/09/tsilhqotin-bc-sign-historic-letter-of-understanding-set-the-stage-for-lasting-reconciliation.html.
See also: “Supreme Court of Canada grants Tsilhqot’in Aboriginal title claim” summary from Gowlings Law Firm available at: http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3399
and “Tsilhqot’in Nation v. British Columbia: Implications for the Enbridge Tankers and Pipelines Project” from West Coast Environmental Law is available at: http://wcel.org/resources/environmental-law-alert/tsilhqotin-nation-v-british-columbia-implications-enbridge-tankers.