On November 7, 2013, the Supreme Court of Canada (SCC) will begin to hear the appeal in the case of Roger William v. British Columbia (Attorney General), commonly referred to as the Tsilhqot’in case. This will likely be a landmark ruling in the complex legal area of Aboriginal rights and title in Canada.

What is Aboriginal title?

Aboriginal title is an aboriginal property right to land. It is not fee simple ownership but a sui generis interest in land that includes the right to use it for economic, social and cultural purposes. Aboriginal title is held communally, not individually and can only be transferred, ceded, or transformed to the Crown. Aboriginal title is constitutionally protected but defined by the Canadian common law. This means that Supreme Court cases like this one can alter/amend the definition.

Background

The Tsilhqot’in Nation, made up of six Indian Act bands in central B.C., fought the province over logging practices within their traditional territories throughout much of the 1990s. Much of the area in dispute was turned into a provincial park in 1994, but the Tsilhqot’in have contested forestry decisions over the remaining land ever since.

In 2002, Roger Williams, on behalf of the Tsilhqot’in Nation, took the province to court. Following five years of court proceedings, the B.C. Supreme Court (BCSC) ruled on Williams in 2007. The BCSC found that Tsilhqot’in Aboriginal title could be found to exist on approximately 200,000 square kilometres of their traditional territory if the case had been argued differently. This included areas of land that the Aboriginal group travelled over. Although it was non-binding, this was the first time in Canada that Aboriginal title was recognized by a court on specific geographic areas.

In 2012, the B.C. Court of Appeal (BCCA) issued its ruling on the case. The BCCA overturned the lower court’s decision and said that Aboriginal title could only exist on specific, intensively used sites, such as permanent villages. BCCA Justice Groberman explained this theory of Aboriginal title as “a network of specific sites over which title can be proven, connected by broad areas in which various identifiable Aboriginal rights can be exercised.”

Impact on Canadian legal landscape

The Supreme Court of Canada’s ruling on the Williams case will have a major impact on the legal, regulatory and political landscape of Aboriginal relations in Canada. Much like Delgamuukw or Haida/Taku, two other watershed rulings in the area of Aboriginal title, the Williams case should help to bring more clarity and certainty to the complicated issues of Aboriginal rights and title.

In B.C. particularly, where the majority of the land base is not covered by treaties and Aboriginal title is still outstanding, this case will have a major impact on government and industry relationships with Aboriginal communities in the province. If the SCC rules in favor of the Tsilhqot’in and finds that Aboriginal title applies to a wide range of traditional territory, Aboriginal groups in the province will demand much deeper consultation and significantly more accommodation from the Crown.

If the SCC upholds the BCCA site-specific theory of Aboriginal title, this would limit the amount of consultation and accommodation necessary for justifying an infringement upon Aboriginal title in the province. Aboriginal groups would likely turn to consulting on infringements on their Aboriginal rights, which are applicable on a wide area of territory, and less on infringements upon Aboriginal title.

Whichever way the court rules, the implications of this case will be vast and far-reaching.

- Jessica Davies, Intermediate Advisor, Aboriginal and Stakeholder Engagement, Communica

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