The Fall 2007 edition of the Dispute Resolution included an article about the importance of relationships with First Nations. On November 21, 2007 the B.C. Supreme Court handed down a decision reinforcing that importance.

The Tsilhqot’in Decision

The Court declined to grant a binding declaration respecting the Aboriginal title claims of the Tsilhqot’in Nation to 4,380 square kilometres of land in the interior of B.C. But Mr. Justice David Vickers said he would have recognized about 45% of that area – or nearly 2,000 square kilometres – as Aboriginal title lands, but for defects in the way the Tsilhqot’in Nation had framed their case. This decision is bound to raise the expectations of First Nations in future dealings with the federal and provincial Governments, including in the treaty process.

Mr. Justice Vickers also expressed the opinion that private lands continue to be bound by pre-existing Aboriginal title, but said it was not his responsibility to address the consequences of that finding.

He also concluded that the B.C. Forest Act could not apply to Aboriginal title lands once there had been a finding of Aboriginal title, and called into question the applicability of the Act to any area where Aboriginal rights might exist, because of the fundamental failure of the legislation to adequately take those rights into consideration.

Background Facts

The case was commenced in the early 1990s by the Xeni Gwet’in First Nation, one of the Indian bands that comprise the Tsilhqot’in Nation. They are located in the Chilcotin region of B.C. near Williams Lake. The Aboriginal title claims of the other Tsilhqot’in Indian Bands are outstanding.

The case began over logging and expanded into an Aboriginal title claim in 1998. The claimed area represents about 50% of the Xeni Gwet’in’s “traditional territory” and 5 to 10% of the Tsilhqot’in’s traditional territory.

The judgment follows a trial that took 339 days between November 2002 and April 2007. Borden Ladner Gervais were co-counsel to B.C.

Claim for Aboriginal Title

The Court agreed with B.C. that the Tsilhqot’in Nation was taking an “all or nothing” approach to Aboriginal title. The Court was not satisfied that the Tsilhqot’in Nation had made out its claim to the entire area and, as a consequence, it declined to make a legally binding declaration of Aboriginal title.

However, as an alternative, Mr. Justice Vickers identified those lands that he considered to be Aboriginal title lands. His comments and findings were described as non-binding and were intended to aid the process of reconciliation between Aboriginal peoples and the Crown. He criticized Canada and B.C. for taking an “impoverished” view of Aboriginal title, calling it a “postage stamp” approach.

Aplication of Provincial Laws

The Court found that the B.C. Forest Act, by its very wording, does not apply to Aboriginal title lands because they are not “Crown lands”. He considered Aboriginal title lands as similar to private lands, which fall outside the scope of the Act. He held that only the federal Parliament, not the BC Legislature, can make laws about the management and use of Aboriginal title lands.

The Court reached a different conclusion in regard to other forms of Aboriginal rights, such as hunting and trapping rights. Provincial laws of general application, such as the Forest Act, can affect those types of rights. Nevertheless, if provincial laws infringe such rights, the Province must justify the infringement. The Court found that the Act infringed the Aboriginal rights of the Tsilhqot’in Nation, and could not be justified.

Mr. Justice Vickers found that the Forest Act was premised on the denial of Aboriginal title, and that the forest management scheme was aimed at maximizing timber values, rather than goals such as sustainable development. He also found that the Province’s consultation with the Tsilhqot’in Nation had been defective because it had not been premised on the recognition of Aboriginal rights and title. Further, Aboriginal rights to hunt and trap were infringed by the impact of forestry activities on the diversity and abundance of wildlife species.

While the Court’s conclusion about the application of provincial laws was made only in regards to the Forest Act, it calls into question whether any provincial legislation involving land use planning or resource management can apply to Aboriginal title lands. Mr. Justice Vickers recognized the “serious implications” of his ruling, but stressed the need for the federal Crown to reaffirm its “central role” in the relationship with Aboriginal Canadians.

Damages and Compensation

The Tsilhqot’in Nation’s $100 million damages claim for wrongful infringements of its Aboriginal title was dismissed, without prejudice to its right to seek damages in a future case.

Mr. Justice Vickers held that the B.C. Limitation Act could not apply to Aboriginal title claims, or else the Province would effectively be allowed to extinguish Aboriginal title.

Impact on Third Party Interests

The Tsilhqot’in Nation sought a declaration of Aboriginal rights and title to the entire claim area. It did not exclude privately owned lands. Although the Court did not grant the declaration sought by the Tsilhqot’in Nation, its opinion on the application of provincial laws raises questions about the effect of underlying Aboriginal title on all third party rights derived from provincial authority, such as fee simple titles, licences and tenures.