The Supreme Court of Canada has granted a declaration of aboriginal title to more than 1,700 square kilometers of land in British Columbia to the Tsilhqot’in First Nation, the first time the court has made such a ruling regarding aboriginal land, according to a CBC report.
CBC is reporting that the unanimous 8-0 decision released Thursday resolved many important legal questions, such as how to determine aboriginal land title and whether provincial laws apply to those lands. It will apply wherever there are outstanding land claims.
The decision, written by Chief Justice Beverley McLachlin, also has implications for future economic or resource development on First Nation lands.
CBC said the case focused on the Tsilhqot’in First Nation’s claim
to aboriginal title to over 440,000 hectares of land to the south and west of Williams Lake in the B.C. Interior.
A B.C. Court of Appeal ruling in 2012 gave the Tsilhqot’in sweeping rights to hunt, trap and trade in its traditional territory. But the Court of Appeal agreed with the federal and provincial governments that the Tsilhqot’in must identify specific sites where its people once lived, rather than assert a claim over a broad area.
The Tsilhoqot’in, a collection of six aboriginal bands that include about 3,000 people, argued the court’s decision failed to recognize the way its people had lived for centuries.
The court heard the Tsilhqot’in people were “semi-nomadic,” with few permanent encampments, even though they saw the area as their own and protected it from outsiders.
In its decision, Canada’s top court agreed that a semi-nomadic tribe can claim land title even if it uses it only some of the time, and set out a three-point test to determine land titles.
CBC said the decision places a greater burden on governments to justify economic development on aboriginal land.
In a note to clients, PI Financial analyst Jason Zandberg made the following observations:
The Supreme Court of Canada has ruled in favour of the Tsilhqot’in Nation in a land claim dispute near Williams Lake, B.C.
This ruling represents a broader victory for aboriginal groups, expanding their rights to claim possession of ancestral lands and control those lands permanently.
The government or private industry must obtain consent from the Aboriginal title holders. If the Aboriginal group declines consent then the government must establish that the proposed incursion is justified.
This means that the government would have to prove an important public purpose and fulfill its duties of trust and care towards the aboriginal people, before a project can go ahead.
The case will impact the proposed Northern Gateway pipeline which crosses several unresolved land claims.
the aboriginal group refuses to consent to an incursion on its lands
: this ruling may add another layer of complexity to the proposed LNG pipelines and is likely to delay projects. Given the First Nations support for LNG pipelines (but not the Enbridge Inc. (TSX: T.ENB, Stock Forum)
Northern Gateway project) we believe these will proceed and do not discount the government’s argument that getting Canada’s resources to market (Asia) is “an important public purpose”.