TSILHQOT'IN NATION v. BRITISH COLUMBIA

Abstract

The Tsilhqot'in case is the most recent Canadian case to contribute significantly to the jurisprudence concerning first peoples land rights. Explicit constitutional protection of Aboriginal land rights has existed in Canada since 1982. Without statutory guidance, particularly vexing issues with which the courts are grappling are firstly the concept of Aboriginal title and secondly evidentiary standards to prove such title that are both equitable and acceptable to the courts. This in turn has led the courts to reject some occidental land law concepts and embrace a sui generis approach to Aboriginal land rights and an approach to the law of evidence appropriate to Aboriginal tenure systems. To date a First Nation is yet to successfully claim Aboriginal title in Canada, and the Tsilhqot'in too were unsuccessful on first instance. However, the Tsilhqot'in judgment imparts a practical foundation for the judicial consideration of oral history and oral tradition evidence. Additionally, while the decision is not binding on cases that follow, the decision provides an indication of areas in which a claim for Aboriginal title might be successful. Moreover, whereas the idea of boundaries is a Eurocentric principle and the Tsilhqot'in have had to conform to those common law principles in order to simply make a claim; traditionally, the Tsilhqot'in society did not have any 'metes and bounds' boundaries but instead recognized something along the lines of social boundaries.