Tsilhqot'in Nation v British Columbia

Tsilhqot'in is the first SCC decision granting a declaration of Aboriginal title. The Court adopted a territorial — not site-specific — approach to occupation, allowing semi-nomadic peoples to establish title across their traditional territories.

The Tsilhqot'in claimed title to roughly 1,700 sq km of central BC. The trial judge would have granted title but felt bound by precedent to require site-specific occupation.

(1) What is the test for occupation in a title claim? (2) Does title here exist?

Title declared.

Occupation for the purposes of Aboriginal title is established by sufficient, continuous and exclusive occupation, viewed from both common-law and Aboriginal perspectives. The standard accommodates the realities of semi-nomadic peoples — regular use of definite tracts for hunting, fishing, otherwise exploiting resources, and excluding others suffices. Crown infringement requires a Sparrow-justified objective and a fiduciary duty owed to the title-holder including consent or, failing that, a justified compelling and substantial public objective.

McLachlin CJ held that Marshall/Bernard's site-specific approach should not be applied rigidly. Territorial control is the essence of title. Once title is established, the Crown's fiduciary relationship requires consent of the title holder or, where that is not forthcoming, a Sparrow-justified compelling and substantial objective with proportionality.

First declaration of title to a specific area. Reframes proof. Strengthens the Crown's consultation and consent obligations. Influences subsequent UNDRIP implementation in BC and federal law.

Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 257.

McLachlin CJ, LeBel J, Abella J, Rothstein J, Cromwell J, Moldaver J, Karakatsanis J, Wagner J