Native Title in Canada and Australia Post Tsilhqot'in: Shared Thinking or Ships in the Night?

The Canadian decision of Tsilhqot 'in Nation v British Columbia (BC Supreme Court, 2007)was a significant step in the resolution ofa long-running timber dispute in western Canada,and the most important judicial exploration of Canadian 'Aboriginal title ' since thewatershed 2002 decision ofDelgamuukw. The primary significance of this recent decisionfor Canada lies in its quite robust conclusions on provincialjurisdictional limitations, and itswrestle with emerging controversies over the exact areas to which the concept ofAboriginaltitle can attach. For Australian observers, the primary importance of the decision lies, itwould seem, in the Court 's disinterest in strict 'continuity ' inquiries, its clear and pointedconfirmation of the comprehensive and contemporary nature of the Aboriginal title interest,and its dissatisfaction with jurisprudential focus on the notion of 'society '. More. broadlyspeaking, the Tsilhqot 'in decision prompts renewed reflection on reconciliation processes inboth countries, and in many ways reminds us of the self-evidently valuable nature ofcomparative study. This paper examines the Tsilhqot 'in decision against the backdrop oftheCanadian legal history, and attempts to explain its significance from both the Canadian andAustralian perspectives.