“Effective Control”: The Tsilhqot’in Title Case
Aboriginal title recognizes that Aboriginal peoples are the owners of the land that they have occupied since time immemorial, with rights as to how it will be used. Aboriginal title to land exists in broad territories, not only small parcels.
In this case, Chief Roger William, on behalf of the Xeni Gwet’in community and Tsilhqot’in Nation, sought a declaration of Aboriginal Title to Tsilhqot’in territory by the Court. In 1983, the BC government issued a license for a lumber company to take trees from within Tsilhqot’in territory. The Tsilhqot’in Nation was not consulted, and denied the company access to their territory, seeking to prohibit commercial logging. The battle ended up in Court, where the original claim was amended to include a declaration of title.
The trial at the BC Supreme Court lasted over 300 days and consisted of substantial evidence including oral histories submitted by elders and knowledge keepers that proved they had occupied the territory. By applying the “exclusive occupation” test, the trial judge held Court found that the Tsilhqot’in Nation had proven title to almost 2000 square kilometers, and rights to harvesting and trading over a bigger area. The Court did not, however, make a declaration of Aboriginal Title, and the decision was appealed to the BC Court of Appeal (BCCA). The BCCA stated that Aboriginal title could only be found at smaller sites, not larger territories, and that title had not been proven for the Tsilhqot’in Nation. This decision was appealed to the Supreme Court of Canada (SCC), which rejected the BCCA’s narrow, restrictive approach to title in favor of the Tsilhqot’in.
The SCC upheld the decision of the trial judge, and reasoned that title was not limited to village sites but extended to lands used regularly for harvesting or cultural purposes where the Aboriginal group had “effective control.”
Tsilhqot’in Nation v British Columbia
Court: Supreme Court of Canada
Citation: 2014 SCC
TAGS: Aboriginal Title; Land Claims; Constitutional
Why this Case Matters:
This case is the first time that Aboriginal title has been affirmed in Canada. With the affirmation, it allows for ownership rights such as occupying and using the land as they deem fit, with the stipulation that it cannot be used in a manner that destroys the sustainability of the land for future generations. It also sets out that title can be infringed upon by the government at a very high threshold. To infringe, the government must prove that there is a substantial public purpose, that it is necessary to achieve their goal, doesn’t infringe more than required, and that the benefits of the infringement are not outweighed by the consequences. It also establishes that provincial governments are entitled to regulate and infringe on Aboriginal title, so long as the infringement is justified.
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