With so many of us working remotely, the June issue of BarTalk is a digital-only issue. Watch for our next print issue in October. 

The Tsilhqot’in Decision

What has changed and what is next?

The Tsilhqot’in Decision

It has been almost two years since the Supreme Court of Canada (“SCC”) released its decision in Tsilhqot’in Nation v. British Columbia, upholding the Tsilhqot’in Nation’s claim to aboriginal title and rights over a portion of its traditional territory. The decision was quickly identified as a landmark decision, as it was the first case from the SCC to confirm aboriginal title over specific areas of land. It was predicted to have significant and long-lasting implications for those in development and resource industries, and of course for First Nations themselves.

The Tsilhqot’in decision has been judicially considered numerous times since it was issued, and has moved the law forward in a number of areas such as division of powers and the assessment of pleadings in aboriginal cases. In some areas, the impact has been less apparent. As Tsilhqot’in confirmed, the Haida test for consultation and accommodation continues to apply, and the duty to consult cases continue to be assessed on that basis. From a purely legal perspective, Tsilhqot’in did not significantly change the law regarding consultation. However, practically speaking, the case has had a real impact on the expectations of parties involved. The SCC’s confirmation in Tsilhqot’in that aboriginal title can be established on a territorial basis has shifted the parameters somewhat, as has the emphasis in the decision on aboriginal title giving the title-holding group the exclusive right to decide how the land is used and the right to benefit from those uses. The word “consent” has gained prominence.

With regard to actually proving title, there have been no subsequent decisions assessing title claims at trial. Observers will have to wait for further judicial guidance in this area. Title claims are expensive and time-consuming to prove and it may be some time before the application of this case to other First Nations' claims will be considered.

Looking then to the Tsilhqot’in Nation specifically, negotiations are underway. In February, the BC government and the Tsilhqot’in Nation signed a five-year framework agreement, named the Nenqay Deni Accord (the “People’s Accord”) for negotiation of a comprehensive and lasting reconciliation between the Nation and the province (left photo). The Nenqay Deni Accord is intended to clarify the next steps in transitioning title lands to Tsilhqot’in management and control. The parties have agreed to negotiate the transfer of additional Crown land areas, beyond those established in the SCC decision. The role of broader stakeholder engagement throughout the process is yet to be determined, which has caused some initial concern from industry and in particular those with subsurface rights on Crown land. Attention may now shift to the immediate and practical impact of Tsilhqot’in on lands within Tsilhqot’in territory, with an eye to the precedent that may be set.

The impact of Tsilhqot’in has been significant, but the long-term implications will not be apparent for some time. Negotiations pursuant to the Nenqay Deni Accord will unfold over the next several years, title cases will slowly work their way through the courts, and the law surrounding consultation and accommodation will continue to evolve.