The Supreme Court of Canada (SCC) released its decision today in the case of Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

In a decision that will have far-reaching implications for Aboriginal title in Canada, the SCC answers, for the first time, the question, how should the courts determine whether a semi-nomadic indigenous group has title to lands?

The SCC rejects the thesis that only specific, intensively occupied areas can support Aboriginal title. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

The Case

Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, have lived for centuries the in a remote valley bounded by rivers and mountains in central British Columbia.

In 1983, B.C. granted a commercial logging licence on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected, sought a declaration prohibiting commercial logging on the land. and  made a claim for Aboriginal title on behalf of all Tsilhqot’in people.  The federal and provincial governments opposed the title claim.

The trial judge held that occupation had been established for the purpose of proving title, by showing regular and exclusive use of sites or territory within the claim area, as well as to a small area outside that area.

On appeal, applying a narrower test based on site-specific occupation requiring proof that the Aboriginal group’s ancestors intensively used a definite tract of land with reasonably defined boundaries at the time of European sovereignty, the British Columbia Court of Appeal held that the Tsilhqot’in claim to title had not been established.

The SCC overturned the Court of Appeal, holding that the trial judge was correct in finding that the Tsilhqot’in had established Aboriginal title to the claim area at issue.

The claimant group, here the Tsilhqot’in, had the burden of establishing Aboriginal title.  Aboriginal title flows from occupation in the sense of regular and exclusive use of land. To ground Aboriginal title “occupation” must be sufficient, continuous (where present occupation is relied on) and exclusive.

These are concepts derived from the common law. The question of sufficient occupation must be approached from both the common law perspective and the Aboriginal perspective. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.

In determining the question at the heart of this appeal, what constitutes sufficient occupation, the court looks to the Aboriginal culture and practices and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.

Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.

The Court saw no reason to disturb the trial judge’s findings that the requirements for continuity and exclusivity of occupation were satisfied: the Tsilhqot’in people have continuously occupied the Claim Area before and after sovereignty assertion and,  prior to the assertion of sovereignty, had repelled other people from their land and demanded permission from outsiders who wished to pass over it.

The Province had failed to comply with its duty to consult and accommodate the Tsilhqot’in people  when dealing with the applications for logging licences. While the Tsilhqot’in held an interest in the land that was not yet legally recognized, the Province had a duty to consult them on uses of the lands and to accommodate their interests.

To read the full decision, please click here