On June 27, 2012, the BC Court of Appeal issued its decision in a key test case that develops the law of Aboriginal rights and title. In William v. British Columbia, 2012 BCCA 285, the Court of Appeal held that the Tsilhqot’in Nation have Aboriginal rights to hunt and trap over approximately 4,380 km² of territory in British Columbia, but denied their Aboriginal title claim.
The Tsilhqot’in Nation has indicated it intends to appeal this decision to the Supreme Court of Canada. Until then, this case sheds more light on the law governing Aboriginal rights, including title, in BC. The most significant aspect of this decision is the court’s treatment of Aboriginal title, which narrows the circumstances in which Aboriginal title likely will be recognized by the courts.
In William v. British Columbia, the Tsilhqot’in Nation claimed Aboriginal title to over 4,380 km² of land and Aboriginal rights to hunt and trap in the same area. The land at issue comprised about five percent of the total area claimed by the Tsilhqot’in as their traditional territory.
At trial, the Tsilhqot’in did not succeed in their Aboriginal title claim, but did prove an Aboriginal right to trap and hunt birds and animals for specific purposes, to trade in skins and pelts “as a means of securing a moderate livelihood”, and to capture and use horses. The trial court also declared that the Province’s forestry activities unjustifiably infringed the Tsilhqot’in Aboriginal rights.
The trial of these issues took 339 days and spanned nearly five years. The Court of Appeal described it as a “massive undertaking” for all involved.
BC Court of Appeal Decision
All three governments - the Tsilhqot'in, Canada and BC - appealed different aspects of the trial judge's decision to the Court of Appeal.
A key question before the Court of Appeal was whether Aboriginal title must be proven on a “site specific”, rather than a “territorial” approach. The former requires proof of regular and intensive use of specific tracts of land, in a manner consistent with ownership, while the latter focuses on whether the First Nation moved throughout the land area to the exclusion of others. As a semi-nomadic people, the Tsilhqot’in had framed their case based on a “territorial” theory of ownership.
The Court of Appeal rejected the “territorial” theory, concluding that a “site specific” approach was supported by previous jurisprudence, including the Supreme Court of Canada’s decision in Delgamuukw, and by the purpose of s. 35 of the Constitution Act, 1982. The Court also said the “territorial” approach was “antithetical to the goal of reconciliation” of Aboriginal and non-Aboriginal interests in Canada, although did not expand substantially on that comment other than to say it constituted an “unnecessary” limitation on the sovereignty of the Crown and/or the aspirations of all Canadians.
The “site specific” approach to Aboriginal title adopted by the Court of Appeal will make it more difficult for First Nations to prove title to large tracts of land, which many First Nations currently claim in the BC treaty process. Based on this decision, title claims with the greatest chance of success in the courts will be those grounded in specific historic settlement sites, or similar localities with strong proof of pre-sovereignty occupation.
More favourable to the Tsilhqot’in Nation was the Court’s finding that its decision did not prevent the Tsilhqot’in from bringing a future title claim in the same land area using a “site-specific” approach, even though the Tsilhqot’in had not succeeded in this case. The Court held it was just to permit such a future claim to proceed because Aboriginal title was a “moving target” in Canadian law, and the Tsilhqot’in’s case was “one of the most complex ever adjudicated in this country”. The Tsilhqot’in’s claim to title in the same land area, based on a “site specific” theory could therefore still be adjudicated by the courts.
The Court of Appeal also said it was possible for a court to grant a declaration of Aboriginal title to a land area smaller than the one asserted by the Tsilhqot’in in their pleadings, showing a more flexible approach to the requirements of pleadings than previous courts. The Court noted that Aboriginal title claims are inherently difficult, and a First Nation ought not be required to plead precisely the same boundary arrived at by the trial judge in his decision to be successful.
The Court of Appeal also reviewed the trial judge’s conclusion that the Tsilhqot’in Nation had an Aboriginal right to capture and uses horses for transportation and work, and a right to trade in skins and pelts as a means of securing a moderate livelihood. At trial, the Province admitted that the Xeni Gwet’in (a sub-group of the Tsilhqot’in Nation) held Aboriginal rights to “hunt and trap birds and animals” for the purposes of securing food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial and cultural uses”, but denied that those rights extended to the capture of horses, or to trade in skins and pelts.
The Court upheld the trial judge’s findings, concluding that the judge properly exercised his discretion to grant the declarations sought. In an apparent effort to balance its conclusion that Aboriginal title must be proven on a narrower, “site specific” basis, the Court emphasised that a First Nation’s interests may be protected through recognition of Aboriginal rights other than title, which are also associated with the land (such as hunting and trapping rights). The Court also said it would be appropriate, at least in some cases, for a First Nation to seek a declaration about its Aboriginal rights before those rights are adversely affected by activity on the territory: “The very acts of planning and authorizing logging infringed the Aboriginal rights of the Tsilhqot’in, since the planning and authorization were incompatible with those rights.”
The Court also agreed with the trial judge that the impugned forest harvesting activity constituted a prima facie infringement of the Tsilhqot’in’s rights, and that infringement could not be justified in the circumstances. The Court said that a low threshold for proving infringement is “entirely appropriate” because “Aboriginal rights short of title are the primary means by which the traditional cultures and activities of First Nations… are protected…” This statement again reflects the Court of Appeal’s view that Aboriginal rights may be the preferred method of protecting First Nation’s interests, than Aboriginal title.
In its analysis of the Tsilhqot’in’s Aboriginal rights, the Court also delved into the question of an Aboriginal right to trade or earn a livelihood. The Court said it was necessary to describe the “scale of trading” when adjudicating Aboriginal rights to trade in a commodity. If that aspect of the case stands, one can expect future cases to grapple with the nature and extent of trade at issue. In this case, the Court found that the right to trade to earn a “moderate livelihood” described “relatively low level of commercial activity”, “somewhat higher than mere subsistence, but not so high as to allow for the accumulation of wealth” and concluded such a right existed in this case.
Reconciliation Through Negotiation
The overall tone of the judgement makes it clear that the Court of Appeal agrees with previous court decisions, including comments by the Supreme Court of Canada Court in Delgamuukw, that reconciliation of Crown and First Nation’s interests is better achieved through negotiation, and not litigation. Despite this frequent message, First Nations continue to seek recognition of their Aboriginal rights by the courts.
Appeal to the Supreme Court of Canada?
The parties have until August 27 to seek leave to appeal this case to the Supreme Court of Canada, which is expected in these precedent-setting circumstances.