Aboriginal Title and Sustainable Development: A Case Study

Introduction The Tsilhqot'in Nation is semi-nomadic community of some 3,000 comprising six bands with shared culture and history (Tsilhqot'in 2014, 259). Their name means people of blue water. At time of Supreme Court of Canada's judgment they were of hundreds of indigenous groups in British Columbia with unresolved land claims (4). (2) In describing judgment's Historic Backdrop, court wrote: The issue of Tsilhqot'in lay latent until 1983, when Province granted Carrier Lumber Ltd. forest license to cut trees in part of at issue. The Xeni Gwet'in First Nations government (one of six bands that make up Tsilhqot'in Nation) objected and sought declaration prohibiting commercial logging on land.... Talks between Ministry of Forests and Xeni Gwet'in ensued, but reached an impasse over Xeni Gwet'in claim to right of first refusal to logging. In 1998, original claim was amended to include claim for Aboriginal on behalf of all Tsilhqot'in people. (5) The claim was opposed by provincial and federal governments (6). In 2002, issue went to trial in British Columbia Supreme Court. The trial lasted for more than 300 days over period of five years (7). The found that Tsilhqot'in were in principle entitled to declaration of Aboriginal to portion of claim area as well as to small area outside claim area. However, for procedural reasons ... he refused to make declaration of title (7). The case went to British Columbia Court of Appeal, which held in 2012 that claim had not been established (8). The Tsilhqot'in then appealed to Supreme Court of Canada, asking for a declaration of Aboriginal over area designated by trial judge with exception of that were privately owned or under water (9). When I speak hereafter of the Tsilhqot'in judgment, I will mean Supreme Court of Canada's judgment. The judgment explained that there were three requirements for Aboriginal title. The occupation of claimed land must have been sufficient prior to assertion of European sovereignty; it must have been continuous, in cases where present occupation was relied upon, and it must have been exclusive prior to European (30, 50, 58). At heart of Supreme Court appeal was issue of what counted as sufficiency of occupation (33). The trial had held that sufficient occupation was proved by showing regular and exclusive use of sites or territory (27). The Court of Appeal disagreed, and held that to prove sufficient occupation an Aboriginal group must prove that its ancestors intensively used definite tract of land with reasonably defined boundaries at time of European sovereignty (28). The Supreme Court sided with trial on this issue (50). Further, it held that Tsilhqot'in met all three requirements for title, and therefore granted them declaration of over area at issue (51-66). The Tsilhqot'in judgment makes frequent references to the Crown. This is because Canada is constitutional monarchy: country's head of state is Queen Elizabeth II. For executive purposes, Crown is Queen-in-Council, meaning executive branch of government. Aboriginal The Tsilhqot'in judgment explains nature of aboriginal as understood in Canadian law. Four points are noteworthy for my purposes. (i) Aboriginal is in effect superimposed on an underlying which Crown acquired when European was asserted (69). But view that no one owned land prior to assertion of European (the doctrine of terra nullius) never applied in Canada. On contrary, Royal Proclamation by King George III of England in 1763 affirmed that Aboriginal who occupied and used land before European settlement had pre-existing legal rights, (3) and this fact gave rise to fiduciary duty on part of Crown (69)--a duty owed by Crown to Aboriginal when dealing with Aboriginal lands (71). …

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