Tsilhqot\u27in Nation v. BC: Reconfiguring Aboriginal Title in the Name of Reconciliation

In the text that follows, I start by explaining how Canada\u27s behaviour in the Tsilhqot\u27in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada\u27s behaviour suggests federal 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. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge\u27s decision, but offered different reasons in support of its conclusions. After identifying how some aspects of the decision of the British Columbia Court of Appeal align with the Supreme Court of Canada jurisprudence on section 35 and reconciliation, I then consider other aspects that illustrate an increasingly impoverished judicial interpretation of how reconciliation may articulate with Aboriginal title, where 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 overreaching. Through this analysis, I show why the Court of Appeal\u27s proposed jurisprudential shifts have the potential to undermine any faith that Indigenous peoples may have in the judiciary enabling an honourable reconciliation between the Crown\u27s de facto sovereignty and their rights. These conclusions, coupled with Canada\u27s behaviour, paint a stark picture