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The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Abstract

The decision of the Supreme Court in Tsilhqot’in clarified the content of the test for Aboriginal title. This article examines the reasoning of the Court to determine whether the judgment meaningfully contributes to re-equilibrating the conceptual framework of Canadian Aboriginal jurisprudence, still deeply skewed in favour of the Crown and of its asserted sovereignty. Beyond the case’s positive outcome for the Tsilhqot’in people, does the clarification of the test empower Indigenous peoples seeking the recognition of their title over their traditional territory? Regarding the role reserved by the Court to Indigenous legal traditions in its reasoning, the answer is no: in determining the standard to meet to establish title, the Court continues to treat “Aboriginal perspectives” as a source of evidence rather than law. Indeed, it draws solely on common law private property precedents to determine what counts as “occupation” sufficient to ground title. However, if we examine the content of this common law standard as clarified by the Supreme Court, the outlook becomes much more positive. By decisively associating the main legal issue underlying title with the historical control of the land rather than with the manner or intensity of its use, Tsilhqot’in effectively makes room for a robust recognition and respect of the continued agency of Indigenous societies on their traditional territories.

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Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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