(Chapter 17A)ABORIGINALTITLE AND MINING IN CANADA-MORE QUESTIONS THAN ANSWERS

摘要

On June 26, 2014, the Supreme Court of Canada issued its decision in Tsilhqofin 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 Nations asserted traditional territory. The Tsilhqot'in Nations 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 Nations 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 established Aboriginal title over its entire claim area, finding that Aboriginal title must be proven on a site-specific basis (e.g., to distinct village sites) and not on a broad territorial basis. Ultimately, the Tsilhqot'in Nation asked the Supreme Court of Canada to declare that it had established Aboriginal title over the area designated by Justice Vickers. In 2014, the Supreme Court of Canada did so, unanimously, and for the first time in Canadian history formally declared Aboriginal title to exist over 1,750 square kilometres of British Columbia.