In so finding, the SCC also stated that Aboriginal title holders, based on this ownership, have the right to enjoy and occupy the land, to decide how the land will be used, to benefit from the use of the land, to pro-actively use and manage the land and to profit from the economic benefits flowing from the lands and resources within the area covered by that Aboriginal title.
This certainly is a favourable decision for First Nations and Inuit peoples who still possess Aboriginal title to their traditional territories. It is yet to be seen how this decision will affect the Métis Nation which is a new and distinct Aboriginal people who came into being post-contact. Our Aboriginal rights were dealt with in the 2003 Powley SCC decision where-in the SCC was required to alter the test for establishing Aboriginal harvesting rights laid down in the Van der Peet SCC decision in 1996, changing the pre-contact rule to the date of effective control in order to establish such Aboriginal hunting and fishing rights for Métis.
In this case, the SCC set the test for establishing Aboriginal title as follows: sufficiency of occupation (pre-sovereignty), continuous occupation and exclusive historic occupation. The first part of the test will depend on the date sovereignty was established in the area that makes up the traditional Métis Nation territory (this case found the date to be 1846 for that geographic area which is now in the province of BC). The second part, continuous occupation will not be an obstacle. The third part of the test will be a challenge as the Métis Nation co-existed with several other Aboriginal nations whose co-existence was recognized and addressed during the treaty/scrip processes in the late 1800s and early 1900s.
In any event, the Métis Nation has an opportunity, like other Aboriginal peoples, to use this significant ruling and engage in negotiations with the federal and provincial governments and industry to ensure that the duty to consult and accommodate are meaningfully applied when the resources in our respective traditional territories are being exploited.
This SCC decision, coupled with the MMF case of last year and the current Daniels litigation, must be acted upon and the pursuit of seeking justice for the dispossession from our land and resources by the failed scrip system must take center stage.
SCC decision: Tsilhqot’in Nation v. British Columbia(click to download)