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The rocky road to reconciliation : exploring the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada Horrocks-Denis, Émilie

Abstract

The purpose of this paper is to explore the effects of Aboriginal title jurisprudence on the relationship between First Nations and the Crown in Canada, paying particular attention to the Tsilhqot’in case involving the Tsilhqot’in Nation’s Aboriginal title claim for lands in British Columbia. Findings show that the 2007 British Columbia Supreme Court’s trial judgement in Tsilhqot’in Nation v. British Columbia attempted to improve relations between the Tsilhqot’in and the Crown by placing equal weight on oral history and oral tradition evidence, adopting a broad and flexible standard of occupation, affirming the inapplicability of the Forest Act to Aboriginal title lands, and expressing an opinion on Tsilhqot’in Aboriginal title to facilitate the subsequent process of negotiations. Nonetheless, the trial judgement failed to provide the Tsilhqot’in people with a declaration of Aboriginal title, due to a defect in their pleadings. By contrast, while the 2012 British Columbia Court of Appeal’s decision in William v. British Columbia correctly allowed the Tsilhqot’in appeal on the issue of pleadings, it largely contributed to subverting relations between the Tsilhqot’in Nation and the Crown by interfering with the factual findings of the trial judge, creating a false dichotomy between site-specific and territorial claims, endorsing a narrow and stringent standard of occupation, articulating a preference for Aboriginal rights over Aboriginal title, and putting forward a hollow conception of reconciliation, which fails to place equal weight on the Aboriginal and non-Aboriginal perspectives. The Tsilhqot’in case confirms the broader pattern of Canadian Aboriginal title jurisprudence, whereby courts consistently dismiss Aboriginal title claims, either on procedural grounds to avoid dealing with their merits, or on substantive grounds to safeguard the interests of the Canadian state and society.

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