Aboriginal Title Declaration Dismissed, for Now: Tsilhqot’in Nation v. British Columbia
Posted in Indigenous Law

On November 21, 2007, the Supreme Court of British Columbia released its decision in Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700.  The decision dealt with a claim brought by Chief Roger William of the Xeni Gwet’in First Nation, on behalf of the Xeni Gwet’in First Nation and the Tsilhqot’in Nation.  Initially, theTsilhqot’in’s claim, against the Province and a number of forest companies, was brought to stop timber harvesting in their traditional territory (located in the Cariboo-Chilcotin region ofBritish Columbia).  The proceedings evolved over time, so that the issues before the Court focused on the Tsilhqot’in’s claim for aboriginal title and rights in a portion of their traditional territory (referenced as the “Claim Area”).  The trial took over five years to complete, occupying 339 days of court time.

Vickers J. declined to make any declaration granting the Tsilhqot’inaboriginal title over the Claim Area, but went on at length to provide his non-binding opinion that the evidence put before him proved aboriginal title to a significant portion of the Claim Area (amounting to approximately 200,000 hectares, slightly less than ½ of the Claim Area).  Vickers J. did grant a declaration that the Tsilhqot’in had aboriginal rights to hunt and trap birds and animals in the Claim Area; to capture wild horses in the Claim Area; and to trade skins and pelts from the Claim Area.  Vickers J. further decided that these aboriginal rights had been unjustifiably infringed by forest harvesting activities authorized by the Province.  However, Vickers J. declined to award any damages for this infringement on the basis that the Tsilhqot’in’s claim for damages had been framed as compensation for infringement of aboriginal title, not aboriginal rights.

The Tsilhqot’in Nation does not have aboriginal title to any land yet.  No declaration has been made, and given the significance of the decision, it is likely to be appealed, despite the fact that Vickers J. devotes a significant portion of his reasons for judgment urging the parties to engage in the process of reconciliation outside the courtroom.


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