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Aboriginal Title and Mining in Canada—More Questions Than Answers

Robin M. Junger, 61st Annual Institute Proceedings (2015)

On June 26, 2014, the Supreme Court of Canada issued its decision in Tsilhqot’in Nation v. British Columbia. The decision concludes a lengthy and complex journey that dates back to 1983 when the provincial government issued forest licenses to a logging company on land within the Tsilhqot’in Nation’s asserted traditional territory. The Tsilhqot’in Nation’s legal battle began when it sought a declaration from the court prohibiting commercial logging on the land, and that claim was eventually amended and expanded to include a claim for Aboriginal title.
The original trial spanned 339 days over five years, beginning in 2002, after which the trial judge—the late Justice D. H. Vickers—concluded in a 458-page judgment that the Tsilhqot’in Nation had established Aboriginal title to a portion of the lands within its claim area, as well as to a small portion of lands outside the claim area. However, because the Tsilhqot’in Nation’s pleading was made out on an “all or nothing” basis for the entirety of its claim area and not to any portions thereof, Justice Vickers determined, for procedural reasons, that he was prevented from making a declaration of Aboriginal title to anything less than the Tsilhqot’in Nation’s entire claim area. He characterized his findings as a non-binding opinion. In 2012, the British Columbia Court of Appeal found that the Tsilhqot’in Nation had not establis