Tsilhqot’in Nation case: What it means for resource development in Ontario – by Tracy A. Pratt and Neal J. Smitheman (Mining Markets – August 11, 2014)


On June 26, 2014, the Supreme Court of Canada released its decision in the Tsilhqot’in Nation v. British Columbia case (2014 SCC 44). The Supreme Court of Canada upheld the British Columbia trial judge’s findings on Aboriginal title and granted Aboriginal title to 2% of the Tsilhqot’in Nation traditional territory. This is the first decision in Canada granting Aboriginal title.


The Tsilhqot’in Nation commenced an action in British Columbia claiming, among other things, Aboriginal title to a large tract of land representing approximately 5% of its traditional territory. The Tsilhqot’in Nation was a semi-nomadic Aboriginal grouping of six bands which shared a common culture and history. The people of the Tsilhqot’in Nation lived in mountain villages. Within their traditional territory they hunted, trapped and collected roots and herbs. Approximately 200 Tsilhqot’in Nation members still live in the area.

After 339 days of trial over five years, and having heard voluminous evidence from Tsilhqot’in Nation elders, historians and other experts, the trial judge found that Aboriginal title was proven for 190,000 hectares. The trial judge ruled, however, that because the action was pleaded as an “all or nothing” proposition and Aboriginal title was not established over the entire claim area, the court could not make a declaration of Aboriginal title.

The British Court of Appeal overruled the trial judge by finding that the action was pleaded sufficiently to permit the court to declare Aboriginal title to less than the full area claimed. Unlike the trial judge, however, the appeal court found that Aboriginal title had not been established. The Supreme Court of Canada disagreed.

Test for Aboriginal Title

The test for Aboriginal title was established by the Supreme Court of Canada in the 1997 case Delgamuukw v. British Columbia. The test has three components namely: (a) the land must have been occupied prior to sovereignty; (b) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation; and (c) at sovereignty, that occupation must have been exclusive.

In the Tsilhqot’in Nation case, the Supreme Court stated that the concepts of sufficiency, continuity and exclusivity as the elements of the test are “useful lenses through which to view Aboriginal title” (para. 32) and should not be considered independently. Throughout the Court’s decision, there is an expressed recognition that the Aboriginal perspective is important and cannot be lost or distorted “by forcing it into common law concepts” (para. 32).

The most significant finding of the Supreme Court as it relates to the concept of occupation is that occupation is “territorial” not “site specific”. It was in this fundamental respect that the Supreme Court differed with the British Columbia Court of Appeal. A “territorial” approach permits an Aboriginal group’s regular use of land for harvesting to constitute sufficient physical possession to establish Aboriginal title.

The implication is that, in most cases, Aboriginal title will extend to a broader area than would have been the case with a site specific approach. In all aspects of the occupation test, context matters and context will include an examination of not only the characteristics of the Aboriginal group making the Aboriginal title claim but the character of the land over which title is claimed (para. 37). Ultimately, whether Aboriginal title is established is a matter of evidence.

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