In its unanimous decision in Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (“Tsilhqot’in”), released June 26, 2014 [found here] the Supreme Court of Canada declared that the Tsilhqot’in Na­tion held Aboriginal title to a remote area located in south central British Columbia, amounting to approximately 1700 square kms. The Court further held that while the Crown lost all beneficial interest in the lands, subject to its fiduciary duties owed to the Ab­original title holders, it retained the legislative capacity to regulate land use and to justifiably infringe Aboriginal title.

BLG’s Patrick G. Foy, Q.C. and Kenneth J. Tyler represented the Province of British Columbia on the argument of this appeal.

In rendering its decision, the Court pronounced on numerous issues of significance to this rapidly evolving area of law. A comprehensive summary and analysis of the Tsilhqot’in decision may be found here.

The potential implications of this decision on energy projects will vary depending on the particular facts of each case. The actual impacts may prove to be as diverse as the vast array of opinions already espoused by the many commentators since this decision was released.  While the test for aboriginal title may have been clarified, the decision has added further uncertainty to project development on non-treaty lands, particularly for non-renewable resource development.  With this comes a reinforcement of the need to engage early with First Nations in an effort to work towards economic reconciliation, including ensuring benefits for future generations, on non-treaty lands, in an effort to increase the level of certainty over project development.

Subsequent to  its decision in Tsilhqot’in, on July 11, 2014, the Supreme Court of Canada released its unanimous decision inGrassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48 [found here] which, in granting to the Province of Ontario the power to ‘take up’ Treaty 3 lands, confirmed that resource development is within provincial jurisdiction, and that the province does not require federal approval to issue forestry licences on treaty lands. The pronouncements in this decision are not only of significance for development in Ontario, but for industry participants in Western Canada who are pursuing development on treaty land. We will be reporting on the implications of the Grassy Narrows decision (also being referred to as the Keewatin decision) in a future post.