Something’s Gotta Give: The Recognition of Aboriginal Title in the Supreme Court of Canada’s Tsilhqot’in decision and the Expansion of Provincial Powers

The Supreme Court of Canada’s (SCC) recent Tsilhqot’in decision is the first judicial finding of aboriginal title in Canadian history. As such it stands as an important milestone in the process which the Court has now long defined as purpose of Canada’s constitutional recognition of Aboriginal and treaty rights: the reconciliation of the Crown’s asserted sovereignty with the prior and continuing existence of Aboriginal peoples. This paper focuses on the decision's federalism jurisprudence. First, it examines the logical validity of the Court’s doctrinal arguments, and concludes that the regulatory results that the Court characterizes as “absurd” in the judgment necessarily follow from federalism itself, and which the Court’s doctrinal change will not avoid. Second, it sets out a different set of reasons for the Court’s federalism decisions, anchored in the judiciary’s legitimacy in a federation: its interest in maintaining a competitive (not cooperative) balance between federal and provincial powers.