A year and a half after the hearing of the appeal, a notable decision in aboriginal title and rights litigation was released on June 27, 2012 — the British Columbia Court of Appeal decision in William v British Columbia (William).

This decision deals with the degree of occupation required by First Nation groups to establish aboriginal title over a claimed land area. The Court of Appeal held that aboriginal title will only be made out when intensive, regular and exclusive usage of a specific site has been proven by a First Nation claimant. Broad territorial claims to aboriginal title are unlikely to be successful. Aboriginal rights, however, will be taken seriously and there will be a low threshold of proof applied when determining whether there has been prima facie infringement of aboriginal rights.

Background

As a result of various forestry activities, the Tsilhqot'in Nation commenced litigation against the Attorney General of Canada and the British Columbia Crown, claiming aboriginal title and rights to two areas (the Claim Area) in the interior of British Columbia, within the traditional territory of the Tsilhqot'in.

The trial of the Tsilhqot'in's claim commenced in 2002 and lasted 339 court days over approximately five years. Among other findings, in a judgment exceeding 500 pages the trial judge (since deceased) dismissed the Tsilhqot'in's claim for declarations of aboriginal title over the Claim Area. In this regard, the trial judge held that the Tsilhqot'in had failed to prove intensive, regular and exclusive usage of the Claim Area sufficient to ground their claim for aboriginal title. The trial judge went on to uphold the Tsilhqot'in's assertion of various aboriginal rights in the Claim Area, and further held that these rights had been unjustifiably infringed by the Crown's authorization of various forestry activities.

The Court of Appeal's findings on aboriginal title

The Court of Appeal distinguished between two theories of aboriginal title: the “territorial theory” and the “site-specific theory.”

The Tsilhqot'in subscribed to the “territorial theory” of aboriginal title, stating that aboriginal title could be established by showing that the Tsilhqot’in were present in and moved through the Claim Area in various patterns at and around the date of the assertion of sovereignty, combined with evidence of attempts by the Tsilhqot’in to repel others who sought to use the land.

The “site-specific theory” of aboriginal title, put forth by British Columbia and Canada, posited that aboriginal title could only be demonstrated over smaller, specific tracts of land that were occupied intensively, regularly and with a degree of exclusivity by the Tsilhqot'in.

The Court of Appeal accepted the site-specific theory of aboriginal title, holding that broad territorial aboriginal title claims did not fit within the purposes of Section 35 of the Constitution Act, the rationale behind the common law's recognition of aboriginal title, or the goal of reconciliation between the Crown and First Nation groups. Mr. Justice Groberman, writing for the court, stated at para 230:

[T]he case law does not support the idea that title can be proven based on a limited presence in a broad territory. Rather, as I read the jurisprudence, Aboriginal title must be proven on a site-specific basis. A title site may be defined by a particular occupancy of the land (e.g., village sites, enclosed or cultivated fields) or on the basis that definite tracts of land were the subject of intensive use (specific hunting, fishing, gathering, or spiritual sites). In all cases, however, Aboriginal title can only be proven over a definite tract of land the boundaries of which are reasonably capable of definition.

Site-specific aboriginal title to certain areas of land would connect by areas in which aboriginal rights existed, as explained by the court at para 238:

The result for semi-nomadic First Nations like the Tsilhqot’in is not a patchwork of unconnected “postage stamp” areas of title, but rather a network of specific sites over which title can be proven, connected by broad areas in which various identifiable Aboriginal rights can be exercised. This is entirely consistent with their traditional culture and with the objectives of s. 35.

In the result, the court agreed with the conclusion of the trial judge that the Tsilhqot'in's broad territorial claim to aboriginal title over the Claim Area was unsustainable in the particular circumstances of the case. Having made that finding, however, the court upheld the lower court's declaration that the dismissal of the Tsilhqot'in's territorial title claim did not preclude the Tsilhqot'in from asserting new claims to aboriginal title over specific sites within the Claim Area.

The Court of Appeal's findings on aboriginal rights

The court considered whether the Tsilhqot'in had the aboriginal rights to a) capture horses in the Claim Area for transportation and work and b) trade in skins and pelts, and if so, whether provincial authorizations granted to forestry companies unjustifiably infringed on these rights.

The court confirmed the trial judge's findings on the existence of these aboriginal rights. The capture of horses qualified as an aboriginal right notwithstanding the fact that horses were introduced to North America by Europeans, as the practice had been developed by the Tsilhqot'in independently and pre-contact. Further, the evidence confirmed the Tsilhqot'in's general aboriginal right to trade in skins and pelts to maintain a “moderate livelihood.”

Based on the test for infringement set out by the Supreme Court in Sparrow, the court confirmed the lower court's finding of prima facie infringement of the Tsilhqot'in's aboriginal rights caused by forestry activities in the Claim Area. The court commented that as “Aboriginal rights short of title are the primary means by which the traditional cultures and activities of First Nations…are protected, it is essential that these rights be taken seriously” (para. 295). As such, the court held that the threshold for proving infringement of an aboriginal right will not be onerous. “Any interference” with an aboriginal right, apart from a trivial interference, will be sufficient to make out infringement.

British Columbia was unable to point to any substantial and compelling governmental objective for forestry activities in the Claim Area to justify the infringement of the Tsilhqot'in's aboriginal rights.

Significance

Subject to almost certain appeal to the Supreme Court of Canada, the 103-page William decision, reflecting the peculiar aboriginal title circumstances of British Columbia, suggests that:

  1. First Nation aboriginal title claimants will have significantly restricted prospects to prove aboriginal title claims to large portions of traditional lands; rather, aboriginal title will be relegated to smaller, specific areas where regular, intensive and relatively exclusive usage can be shown, with aboriginal rights being present in larger tracts of traditional territory.
  2. A failure to prove aboriginal title to large tracts of traditional territory will not preclude aboriginal title claimants from bringing new claims for aboriginal title over more specific areas where the requisite regular, intensive and relatively exclusive usage can be proven.
  3. While the scope of aboriginal title may be restricted, aboriginal rights will be taken seriously and there will be a low threshold of proof applied when determining whether there has been prima facie infringement of aboriginal rights. Moreover, governments must establish the existence of a valid legislative or governmental objective to justify the infringement of aboriginal rights.