TSILHQOT’IN NATION V. BRITISH COLUMBIA
Amnesty International was represented in this case by Justin Safayeni.
WHAT IS THIS CASE ABOUT?
The Tsilhqot’in First Nation is a semi-nomadic grouping of six bands who have lived in a remote valley in central British Columbia for centuries. They went to court more than 20 years ago to protect their traditional land, which British Columbia had targeted for intensive logging. After an extensive five-year trial, Justice David Vickers of the British Columbia Supreme Court concluded that governments must respect the Tsilhqot’in people’s right to use their traditional territory for activities such as hunting, trapping and the capture of wild horses.
Importantly, Justice Vickers also concluded that the Tsilhqot’in Nation had proven title to at least 200,000 ha at the heart of their traditional territory – land that the province had claimed was Crown property.
The case made it up to the Supreme Court of Canada, which was tasked with determining whether the Tsilhqot’in peoples had established (1) their right to use their traditional territory for traditional activities; and (2) title over the disputed territory. The provincial and federal governments argued that Aboriginal title should be construed, if at all, very narrowly to include small areas used on a regular and intensive basis. Moreover, the governments posited that even if title were established, it should not limit provincial powers to continue making decisions about how Indigenous people’s traditional lands should be developed.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International co-intervened in this case with the Canadian Friends Service Committee. In our intervention, we argued that the Canadian framework for Aboriginal title under section 35 of the Canadian constitution – which protects Aboriginal people’s rights – should be interpreted and applied consistently with international human rights law. Accordingly Amnesty International and the Canadian Friends Service Committee argued that the Supreme Court of Canada should adopt an approach to section 35 that advances the goal of genuine reconciliation by taking account of the following principles:
- Traditional systems of land use, possession, and ownership by Indigenous peoples must be respected in determining whether Aboriginal title has been established. Categorically imposing restrictive criteria – including intensive use or site specificity – is inconsistent with international human rights law;
- Aboriginal title is necessary to ensure full enjoyment of other human rights recognized under international human rights law, including the right to self-determination, because Aboriginal title is the species of Aboriginal rights that provides Indigenous peoples with the greatest security and autonomy over the use and control of their lands; and
- Stringent criteria must be met before a limitation on Aboriginal title can be justified under international human rights law.
STATUS OF THE CASE
In a landmark unanimous decision, the Supreme Court of Canada found that the Tsilhqot’in peoples have established legal title to some 2,000 km2 in the heart of their traditional territory. This Court also firmly rejected the claim by the provincial and federal governments that the land owned by the Tsilhqot’in could be arbitrarily reduced to a few village sites and fishing rocks within this larger territory. Critically, the Supreme Court found that development on land owned by Indigenous peoples requires the consent of those nations.
While the Court’s interpretation of Indigenous title applies only to lands where Indigenous ownership has been recognized, the Court itself pointed out that governments and industry should take note of the possibility of such ownership eventually being established.
“Amnesty International and Quakers intervene in crucial Indigenous rights case” (21 November 2013)