Constance MacIntosh, “Tsilhqot’in Nation v BC: Reconfiguring Aboriginal Title in the Name of Reconciliation”

Working Abstract

This article discusses the current litigation between the Tsilhqot’in Nation, Canada and British Columbia. It explains how Canada’s behavior in the litigation has undercut, rather than fostered, the potential for a relationship of trust, which is foundational for reconciliation. In particular, it illustrates how Canada’s legal arguments suggest disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. It also considers portions of the Court of Appeal’s reasons in this case. While some aspects are consistent with the Supreme Court of Canada jurisprudence on section 35 and reconciliation, other aspects illustrate an impoverishing judicial interpretation of how reconciliation may articulate with Aboriginal title. In particular, it appears that reconciliation is being cast as requiring a pre-emptive diminution of Aboriginal title rights. The Court of Appeal also suggests a role for the courts that may be over-reaching. Through this analysis, I show why the Court of Appeal’s proposed jurisprudential shifts carry the potential to undermine any faith that Indigenous peoples may have in the judiciary enabling an honourable reconciliation between the Crown’s de facto sovereignty and their rights. These conclusions, coupled with Canada’s behavior in the litigation, paint a stark picture.

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