Tŝilhqot’in Nation v British Columbia

Felix Hoehn, 'Tŝilhqot’in Nation v British Columbia' in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence, (2020) Canadian Native Law Reporter, Special Edition (Saskatoon: Indigenous Law Centre) 191.

22 Pages Posted: 2 Aug 2021 Last revised: 9 Aug 2021

See all articles by Felix Hoehn

Felix Hoehn

College of Law, University of Saskatchewan

Date Written: 2020

Abstract

This is a reimagination of the Tsilhqot'in decision of the Supreme Court of Canada, in the form of a a decision of the hypothetical Indigenous Nations Court, on appeal from the Supreme Court of Canada. Held: Appeal allowed. The Court orders 1. A declaration of Indigenous title over the same area to which the Supreme Court’s declaration of Aboriginal title applied. 2. The Tŝilhqot’in Nation may exercise jurisdiction over their Indigenous title lands subject to the constraints set out in these reasons. 3. The Tŝilhqot’in Nation may bring an action to seek recognition of additional territories in accordance with evidentiary requirements described in these reasons. 4. The parties have a duty to negotiate a treaty and to consult before taking actions that will affect significant interests of the Crown or the Tŝilhqot’in Nation, as the case may be. 5. While negotiations are in progress, Crown laws not in conflict with Tŝilhqot’in laws will remain in effect. Crown laws conflicting with Tŝilhqot’in laws must pass the infringement test set out in these reasons. 6. The parties should agree to interim and co-operative arrangements to serve until the terms of a treaty are negotiated. Courts may entertain applications for ancillary relief reasonably necessary to ensure the jurisdiction of sovereign parties is respected while treaty negotiations are in progress. 7. The Crown has a duty to take reasonable steps to ameliorate the existing inequality in bargaining power. 8. Either party may apply for relief if it believes the other is not complying with the duty to negotiate or is otherwise not proceeding in a manner consistent with these reasons.

Keywords: Indigenous, Aboriginal, Title, Sovereignty, Treaty, Negotiation, Rights, Infringement, Aboriginal Title, Indigenous Title

Suggested Citation

Hoehn, Felix, Tŝilhqot’in Nation v British Columbia (2020). Felix Hoehn, 'Tŝilhqot’in Nation v British Columbia' in Kent McNeil & Naiomi Metallic, eds, Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence, (2020) Canadian Native Law Reporter, Special Edition (Saskatoon: Indigenous Law Centre) 191., Available at SSRN: https://ssrn.com/abstract=3896589

Felix Hoehn (Contact Author)

College of Law, University of Saskatchewan ( email )

Saskatoon, Saskatchewan
Canada
3069667954 (Phone)

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