High Water Mark Test For Establishing Aboriginal Title To Be Reviewed By The SCC

The Supreme Court of Canada is set to revisit the test for Aboriginal title when it hears an appeal from the British Columbia Court of Appeal's decision in William v. British Columbia this November. This appeal will be of particular significance to parties engaged in resource development, as it stands to affect the strength of claims to Aboriginal title over traditional territory, as well as claims to the right to fish and hunt in a given area. The trial judgment and the Court of Appeal took a restrictive view of the test for establishing Aboriginal title where proof of such title is based on a limited presence in a broad territory.

Background

The SCC hearing will mark the culmination of litigation between the Tsilhqot'in First Nation (the "First Nation") and the province spanning over more than two decades. The litigation involves claims for Aboriginal rights (to hunt and trap) and Aboriginal title in the First Nation's traditional territory.