16 | LEXPERT • June 2015 | www.lexpert.ca/usguide-corporate/
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ABORIGINAL TITLE
IF RESOURCE COMPANIES thinking of doing business in Canada
read just one thing it should be this: a decision called Tsilhqot' in, which found a small semi-
nomadic tribe has title to more than 1,750-square kilometers of land in British Columbia.
While the concept of Aboriginal title has long existed under Canadian law, no court has
ever before found it applied.
" is is the fi rst time the court, in this case the Supreme Court of Canada, has recog-
nized title over a piece of First Nations land; that's defi nitely the headline," says Charles
Kazaz, a partner at Blake, Cassels & Graydon LLP in Montréal.
Some would characterize Tsilhqot' in (pronounced chill-KO-tin) as nothing less than a
legal earthquake.
e question of title cuts to the heart of the o en uneasy relationship between govern-
ment, business and First Nations over who has fi nal say over projects that touch on
Aboriginal lands.
Where no title has been recognized, the Crown has a fi duciary duty to the aff ected
Aboriginal group and is required to consult with them in good faith, and, "if appropriate,
accommodate [their] interests," according to the Constitution Act, 1982.
But where title has been recognized – and so far that is just one place in all of Canada, the
Tsilhqot'in lands in south-central BC – the group has the "exclusive right" to decide how
the land is used unless it can be demonstrated the proposed infringement is justifi ed by a
compelling public interest.
e practical eff ect of Tsilhqot' in is that any company hoping to develop resources or
carry out infrastructure work on Tsilhqot'in lands must either obtain consent from the
small group of six bands or demonstrate that the infringement is defensible.
Erik Goldsilver, a partner at Cassels Brock & Blackwell LLP in Toronto, says where there
is no valid public-interest argument, the consent requirement amounts to a veto.
"I think it does. Absent meeting the conditions set out for a justifi able infringement they
have a consent right, or a right of veto if that's what you want to call it."
The Supreme Court of Canada's decision
recognizing title over a piece of First
Nations land is having a major impact
on investment in the resource sector
SANDRA RUBIN
ABORIGINAL
LAND
ABORIGIN ABORIGIN
PHOTO
COURTESY
OF
TSILHQOT'IN
NATIONAL
GOVERNMENT
