Tsilhqot’in Nation, semi-nomadic group of bands with unresolved land claims, objected when B.C. granted commercial logging licence on land considered part of Tsilhqot’in traditional territory. Tsilhqot’in original land claim amended to include claim for Aboriginal title to land at issue. Supreme Court of British Columbia held that Tsilhqot’in claim not established, but Tsilhqot’in’s appeal allowed. To ground Aboriginal title, in sense of regular and exclusive use, requires sufficient, continuous and exclusive occupation. Analysis of Aboriginal culture and practices determines whether group exercised effective control at time of assertion of European sovereignty. Specific, intensively occupied areas need not be established; sufficient that impugned parts of land regularly used by Tsilhqot’in and that Tsilhqot’in repelled other people from land. Evidence supported finding that Tsilhqot’in treated land as exclusively theirs. Prior to establishment of title, Crown must consult in good faith, with Aboriginal groups asserting title, about proposed uses and may also be required to accommodate interests of claimant groups. Strength of claim and seriousness of potentially adverse effect upon interest claimed will determine level of consultation and accommodation required. Once Aboriginal title established, Crown, in addition to complying with procedural duties, must justify any incursions. Proposed government action must be consistent with s. 35 of Constitution Act, 1982 (“CA”), which requires compelling and substantial governmental objective that government action be consistent with Crown’s fiduciary duty to Aboriginal group. Province breached duty to Tsilhqot’in by failing to consult and failing to accommodate their interests. Forest Act (B.C.) (“FA”), provincial law of general application applies, on its face, to Aboriginal title land, subject to constraints of s. 35 of CA, and division of powers. Now that Aboriginal title established, however, FA no longer applies as timber no longer falls within definition of “Crown timber”. Issuance of timber licences, direct transfer of Aboriginal property rights to third party, constitutes meaningful diminution in Aboriginal group’s ownership right which Crown was required to justify. Doctrine of interjurisdictional immunity ousted by s. 35 framework as tension between Aboriginal title holders and province, not two levels of government. Province’s land use planning and forestry authorizations under Forest Act inconsistent with its duties owed to Tsilhqot’in.
Xeni Gwet’in First Nations v. British Columbia (Jun. 26, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34986) Decision at 217 A.C.W.S. (3d) 1 was reversed. 241 A.C.W.S. (3d) 2.