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Tsilhqot'in Nation v British Columbia is a landmark decision of the Supreme Court of Canada that established Aboriginal land title for the Tsilhqot'in First Nation, with larger effects. As a result of the landmark decision, provinces cannot unilaterally claim a right to engage in clearcut logging on lands protected by Aboriginal title; they must engage in meaningful consultation with the title holder before they proceed. Although the Aboriginal title holder does not have to consent to the activity, meaningful consultation is required before infringement of the right can take place.

Background
In 1983, the province of British Columbia issued a license to Carrier Lumber to cut trees in lands that included remote central British Columbia territory which was claimed by the Xeni Gwet'in band of the Tsilhqot'in. The Tsilhqot'in are a semi-nomadic group of First Nations people who had lived in the area for centuries, managing these lands and repelling invaders. The Xeni Gwet'in blockaded the area, preventing Carrier from logging. The company conducted unsuccessful negotiations with the provincial government to continue logging. The Xeni Gwet'in filed suit seeking a court declaration that would prohibit Carrier Lumber's commercial logging operations in this area, and establish their claim for Aboriginal title to the land, which was part of their historic territory.

Nemiah Declaration
In 1989 the Tsilhqot'in nation wrote the Nemiah Declaration (nenduwh jid guzitin) in order to assert their rights to control activity within their territory after Carrier Lumber began widespread commercial clear-cut logging within lands claimed by the Tsilhqot’in Nation.

The declaration is rooted in traditional Tsilhqot’in values which uphold reciprocal relationships with nature and serve to “enforce and defend” the Tsilhqot’in aboriginal rights. The declaration supports traditional indigenous rights such as hunting, fishing, trapping and gathering resources. However, it prohibits a large variety of commercial activities such as mining, commercial logging, commercial road buildings which it deems harmful to the economic and spiritual wellbeing of the land and the people.

The guiding principle of the declaration was summarised by Winston Talio who stated “That mountain has been here for millions of years and it will be there for millions of years. We are guardians of the land. We are not supposed to own it.” and “Protect the land. It can save you or it can kill you, depending on how you treat it.”

Lower courts
At the trial, which lasted from November 18, 2002 until November 20, 2007, both the federal and provincial governments opposed the title claim. The trial judge, Justice David Vickers, applied a test for Aboriginal title that examined whether the Xeni Gwet'in regularly and exclusively used the sites or territory within the claim area. Vickers concluded that the Xeni Gwet’in had exclusive Aboriginal title to around 1,750 square kilometres (680 sq mi), which is 40% of their originally claimed land. This decision undermined the Crown’s central argument that Aboriginal land titles could only be granted for small, specific sites.

In 2012, the decision was appealed by all parties to the British Columbia Court of Appeal, where the court held that the Tsilhqot’in claim to title had not been established. They, unanimously overturned Justice Vickers principles regarding Aboriginal title and instead supported the Crown’s understanding of small scale and limited Aboriginal titles. Once again all parties appealed.

Decision of the Supreme Court
In June 2014, the Supreme Court, led by Beverly McLachlin, unanimously allowed the appeal. They ruled that the Tsilhqot'in did have a claim of Aboriginal title to the 1,750 square kilometres (680 sq mi) approved by Vickers. This was the first Aboriginal title ever awarded in Canadian history.

Aboriginal Title
The court held that Aboriginal title constitutes a beneficial interest in the land, the underlying control of which is retained by the Crown. Rights conferred by Aboriginal title include the right to decide how the land will be used; to enjoy, occupy and possess the land; and to proactively use and manage the land, including its natural resources. But, the court set out a Sparrow-style mechanism by which the Crown can override Aboriginal title in the public interest:


 * 1) the Crown must have carried out consultation and accommodation;
 * 2) the Crown's actions must have been supported by a compelling and substantial objective; and
 * 3) the Crown's action must have been consistent with its fiduciary obligation to the Aboriginal body in question.

Precedent
Following the court's ruling the Nemiah Declaration was made the first law of the Tsilhqot'in nation on March 19th, 2015. The court ruled that land held under an Aboriginal title is held communally and cannot be sold to anyone but the Crown. This case established that it is illegal for Canada’s provincial and federal governments to assume ownership of unceded lands without legal basis, a precedent that supports the claims of other First Nations in Canada who have never legally surrendered land to the provincial or federal government.

Oral Tradition as Evidence
Oral tradition made up a significant portion of the evidence presented by the Tsilhqot’in people in the trials. This reinforced the precedent set in the 1997 Delgamuukw v British Columbia case, which was restated and summarized.

New Prosperity Mine
The Tsilhqot'in Nation v British Columbia case did not end all attempts at commercial mining in the now recognized Aboriginal title of the Tsilhqot'in nation. In 2010, Taseko Mines Ltd received a permit to open a gold and copper mine called the New Prosperity Mine in the area, which was renewed again in 2015. The Tsilhqot'in used roadblocks to prevent Taseko from bringing in personnel or heavy equipment to begin work. After a series of court cases, an appeal by Taseko was finally rejected at the Supreme Court of Canada which has been regarded as the end of the New Prosperity Mine. The many cases cost the Tsilhqot'in millions of dollars.