## Facts

- British Columbia granted a commercial forestry licence in 1983 over land within the traditional territory of the Xeni Gwet’in, part of the Tsilhqot’in Nation, in central British Columbia.
- The Tsilhqot’in historically used the area for hunting, trapping, foraging, seasonal habitation, travel routes, and territorial control, including excluding others.
- After negotiations failed, the Xeni Gwet’in blockaded the area to prevent logging.
- The Tsilhqot’in brought an action seeking (1) a declaration of Aboriginal title to a portion of their traditional territory and (2) relief preventing provincial forestry operations inconsistent with that title.
- The trial court found the claim largely proven but did not issue a declaration for procedural reasons.
- The court of appeal rejected a broad territorial claim, treating Aboriginal title as essentially site-specific.
- The Supreme Court of Canada allowed the appeal and issued a declaration of Aboriginal title over approximately 1,750 square kilometres.

## Issues

1. What legal test governs proof of Aboriginal title, including the role of pre-sovereignty occupation?
2. Whether Aboriginal title may be established territorially based on regular use and control, or is limited to discrete, intensively used sites.
3. Whether the Tsilhqot’in established Aboriginal title on the evidentiary record.
4. What rights and limits attach to Aboriginal title, including decision-making and economic use.
5. When and how the Crown may justifiably infringe Aboriginal title, including consultation, fiduciary obligations, and compensation.
6. Whether British Columbia breached its duty to consult and accommodate in authorizing forestry activity.
7. Whether and how provincial laws of general application apply on Aboriginal title lands given constitutional protection for Aboriginal and treaty rights.

## Decision

- The Court unanimously allowed the appeal and granted a declaration of Aboriginal title to a defined area of approximately 1,750 km².
- The Court rejected a strictly site-specific approach and confirmed that title may extend to territory regularly and exclusively used and controlled, even without intensive occupation of every part.
- The Court held that title was proven because the Tsilhqot’in showed sufficient occupation at sovereignty, continuity (as relevant), and exclusive historic occupation.
- The Court held Aboriginal title includes rights akin to ownership: to decide land uses, possess and occupy, enjoy, manage, and obtain economic benefits, subject to an internal limit protecting the land’s capacity to sustain future generations.
- The Court held British Columbia breached the duty to consult and accommodate regarding the forestry authorizations and had not justified the resulting interference with asserted or proven title.
- The Court held provincial laws may apply to title lands in principle, but their operation is limited by constitutional protection for Aboriginal rights; infringements require justification.

## Legal Principles

- Aboriginal title is grounded in occupation prior to the assertion of Crown sovereignty and is proven by: (1) sufficient occupation, (2) continuity where present occupation is used to infer historical occupation, and (3) exclusive historic occupation.
- The proof and characterization of title must account for Indigenous perspectives and practices and translate pre-sovereignty interests into enforceable modern legal rights.
- Aboriginal title is territorial where the evidence shows regular, exclusive use and control of a tract consistent with the group’s way of life; it is not confined to pinpoint sites.
- Title confers the right to use, enjoy, and manage the land and to benefit economically from it, with an internal limitation against uses that would substantially impair the land for future generations of the title-holding group.
- Crown action affecting asserted or established title triggers a duty to consult and, where appropriate, accommodate; lack of consent requires consultation plus justification.
- Infringement of Aboriginal title must pursue a compelling and substantial objective and be consistent with the Crown’s fiduciary obligations, including proportionality, priority of the Aboriginal interest, and fair compensation where appropriate.
- Provincial laws of general application can apply on title lands, but constitutional protection limits provincial authority where the law’s effect infringes Aboriginal title; such effects must be justified.

## Conclusion

The Court recognized Aboriginal title to a specific territory and clarified that title may be proven territorially through sufficient, continuous (as applicable), and exclusive occupation viewed through both Indigenous and common-law lenses; governments must consult and may proceed without consent only where any infringement is properly justified and consistent with fiduciary duties, with provincial regulation constrained by constitutional protection for Aboriginal rights.


Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 256 (Can. 2014)