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VICTORIA, BC, Jul 16, 2014– On June 26, the Supreme Court of Canada awarded title to a piece of B.C.’s interior roughly the size of Prince Edward Island to the 3,000 member T’silhqot’in First Nation. Initial reaction from government and business commentators characterized the decision as merely a clarification of previous lower court judgements. That was before it became clear that the land claim entitlement criteria set out in the court’s 37 page decision, written by Chief Justice Beverley McLachlin, exceeded the worst case scenario of both governments and industry.
Under previous lower court judgements, the “basis of occupation” to be used in establishing Aboriginal title was limited to the immediate environs around settlements. The Supreme Court has vastly expanded the basis of occupation: “. . . Aboriginal title . . . extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty” (the mid-1800’s). The Court justifies this breathtakingly extreme interpretation by stating “. . . what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question . . . and the common law notion of possession as a basis for title”. With these words, the Court has, in effect, established a separate legal structure for aboriginals and non-aboriginals that has implications far beyond land entitlements.