2014 Year in Review – Tsilhqot’in Nation v. British Columbia: A Landmark Decision from the Supreme Court of Canada

By Lara Koerner Yeo

On June 26, 2014, the Supreme Court of Canada (SCC) released a landmark decision on Aboriginal title in Canada. In Tsilhqot’in Nation v British Columbia,[1] the Court establishes Aboriginal title for the first time in Canada, recognizing the Tsilhqot’in Nation as a holder of Aboriginal title across a swath of land in northwestern British Columbia. The decision further clarifies the test for determining Aboriginal title and the scope of the rights that flow from it. In addition, the Court describes the obligations of the Crown, and third parties, when these entities seek to infringe upon Aboriginal title.

Decision provides further clarity on the test for establishing Aboriginal title

Central to this decision is its determination that First Nations can legitimately hold title over large swaths of land. The ruling overturns the BC Court of Appeal “small spots” or site-specific framework for assessing Aboriginal title claims.

The Court reaffirmed and clarified the three-pronged test for Aboriginal title set out in Delgamuukw v British Columbia, which requires proof of sufficient, continuous, and exclusive occupation. An Aboriginal First Nation must illustrate: (1) that it maintained a presence over the land in such a way that a third-party would, and can, recognize that presence; (2) that it was present on the land prior to Crown sovereignty; and, (3) that it exercised exclusivity over the land.[2] Canadian courts are obliged to consider an Aboriginal title claim in a culturally sensitive way, recognizing the group’s specific custom and law, when deciding whether or not a claim satisfies the test.[3]

The Court further elaborated on the bundle of property rights flowing from Aboriginal title in the Tsilhqot’in decision. Property rights flowing from Aboriginal title include: “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”[4]

The decision further clarifies Crown and other third-party obligations when approaching use of Aboriginal title lands

The Tsilhqot’in decision changes how Aboriginal First Nations, the Crown, and third parties are required to act in regard to land use projects on Aboriginal title lands. If the Crown or third parties want to make use of Aboriginal title lands, they must seek the consent of the Aboriginal title interest claimant,[5] irrespective of whether the title claim has been recognized by the courts.[6] If the Aboriginal title claimant refuses consent, parties must have a “compelling and substantial” objective to infringe upon the lands, which must conform to the spirit of reconciliation with Aboriginal peoples in Canada and align with the State’s fiduciary duty.[7]

Canada breaches its fiduciary duty if an infringement would deprive future generations of the ability to benefit from the land and if the gravity of the infringement is not proportional to the benefits enjoyed by the Aboriginal titleholders and the public at large.[8] Courts must consider both Aboriginal and non-Aboriginal worldviews and find the party’s objectives to be consistent with the Crown’s fiduciary duty to the Nation claiming title.

A win for the realization of Aboriginal title rights in Canada

The doctrine of terra nullius, which asserts that no individual or group held title to land before European sovereignty, is not a recognized way of justifying territorial acquisition in human rights law. The Economic and Social Council of the United Nations has called for the doctrine to be “eradicated from modern legal systems;”[9] moreover, the United Nations Permanent Forum has called for a special mechanism to investigate historical land claims.

The Tsilhqot’in decision supports the call to extinguish land claims made by asserting terra nullius. Chief Justice McLachlin, writing for the unanimous Court, asserts that the doctrine never applied in Canada and can never be used as a legal foundation to establish title.[10]

Human rights treaties, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and other normative human rights instruments, establish an international framework for Indigenous rights law. This is a unique area of law within the human rights system that recognizes a differentiated set of rights for indigenous peoples, including the right to occupy and use traditional lands. United Nations treaty review bodies have recommended that Canada not infringe upon the realization and development of Aboriginal rights, including title, in Canada.[11] More recently, the former UN Special Rapporteur on Indigenous Peoples, James Anaya, recommended that Canada continue to improve the land claim process in a way that does not restrictively interpret Aboriginal rights.

The UNDRIP is the principal authority on Indigenous rights in the international human rights system. The Declaration promotes harmonious relations between States and Indigenous peoples and enshrines, in article 26, Indigenous peoples’ rights to their traditional lands and resources, including the rights to own, use, develop, and control such lands. Furthermore, Article 27 establishes that there should be a “fair, independent, impartial, open and transparent process…to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources” in a culturally sensitive way that embraces Indigenous custom, law, and worldviews.

The Supreme Court has moved the law forward on Aboriginal title in a way that better aligns with the aforementioned aspects of Indigenous rights law. The decision affirms the importance of Aboriginal custom and worldviews and strengthens Canada’s commitment to realizing Aboriginal title rights in domestic law and practice.


[1]                      Tsilhqot’in Nation v British Columbia, 2014 SCC 44, online: <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do> [Tsilhoqt’in Nation].

[2]                      Ibid. at para 25.

[3]                      Ibid at para 41.

[4]                      Ibid at para 73.

[5]                      Ibid at para 76.

[6]                     Ibid at para 78.

[7]                      Ibid at para 84.

[8]                      Ibid at paras 86-7.

[9]                      United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, UN Doc E/CN.4/1989/22, 8 Feb 1989, para 40(b) at 10.

[10]        Tsilhqot’in Nation, supra note 1 at para 69.

[11]                    UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 20(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En; and, UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

For more information see:
The Torys LLP Aboriginal Bulletin, “The Supreme Court of Canada’s Historic Aboriginal Title Case”