Tsilhqot’in Nation v. British Columbia  SCC 44
Supreme Court of Canada
The Tsilhqot’in Nation challenged a provincial decision to grant a commercial logging license on land considered by the Tsilhqot’in to be part of their traditional territory. The Tsilhqot’in filed a claim to their territory.
The Supreme Court of Canada held that Aboriginal title flows from “sufficient occupation” namely, sufficient and continuous use of the land, together with exclusive occupation. In making that determination, courts must apply a “culturally sensitive approach” to sufficiency of occupation “based on the dual perspectives of the Aboriginal group in question — its laws, practices, size, technological ability and the character of the land claimed — and the common law notion of possession as a basis for title.” Para. 41. Moreover, with respect to occupation of land, the analysis is no longer limited to specific sites of settlement but now extends to land regularly used for hunting, fishing, gathering or for exploitation of natural resources over which the First Nation exercised control at the time of the assertion of European sovereignty in respect of the land in question.
Governments and third parties seeking to use the land must obtain the consent of the First Nations title holders. If title holders do not consent, the government may take action forcing the proposed land use provided the use is justified under section 35 of the Constitution Act, 1982.
To justify overriding a First Nation’s decision concerning aboriginal titled land, the government must show that: (1) it discharged its procedural duty to consult and accommodate with the First Nation; (2) its actions are backed by a compelling and substantial objective; and (3) the governmental action is consistent with the Crown’s fiduciary obligation. Para. 77. Infringements on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.