Originally published in Mineral Exploration - Fall 2012.
The decision of the British Columbia Court of Appeal (BCCA) in William v. British Columbia issued June 27, 2012, is the most recent pronouncement on Aboriginal title. The decision goes to the heart of Aboriginal title and rights, and will have important implications for Aboriginal groups, government and project proponents who are undertaking development in areas where Aboriginal title is claimed. To date, there have been few cases that have considered the scope of Aboriginal title. Claims to Aboriginal title generally arise where the Aboriginal group has not surrendered or ceded its interest in the relevant lands. This particular decision provides further clarification on specifically what constitutes “occupation” for the purpose of proving Aboriginal title. Given the differing perspectives put forward in this case, it would not be surprising if this decision were appealed to the Supreme Court of Canada, which would be a welcome development as it would provide further guidance in a highly complex area of law with considerable uncertainty. This guidance is needed in areas across Canada where Aboriginal title is claimed (including most of British Columbia), and where Aboriginal groups are nomadic or seminomadic. At this juncture, however, the BCCA has found that a high threshold must be met in order to establish Aboriginal title.
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