On June 27, 2012, the BC Court of Appeal released its reasons in William v. British Columbia (2012 BCCA 285), an appeal of 2007 BCSC 1700, the first Aboriginal title claim to land to go to trial in British Columbia since the Supreme Court of Canada released Delgamuukw v. British Columbia in 1997.
On behalf of the Tsilhqot’in people, Chief Roger William sought declarations of Aboriginal title over 440,000 hectares of land lying in the Cariboo-Chilcotin region of British Columbia (the “Claim Area”). The Tsilhqot’in also sought declarations of Aboriginal rights to hunt, trap, trade in animal skins and pelts, and to capture and use wild horses.
The trial lasted 339 days spanning almost five years and produced lengthy reasons for judgment, albeit much of the decision was non-binding. In the end, the trial judge dismissed the claim for Aboriginal title without prejudice to the Tsilhqot’in’s right to claim title for a portion of the Claim Area (and damages) in the future, but granted the declaration of Aboriginal rights, and found those rights had been infringed by forestry activities in the Claim Area. No damages were awarded for the infringement.
Canada, British Columbia and the Plaintiff each filed appeals, which were heard almost exactly eight years after the start of the trial. In the end, the Court of Appeal upheld the trial decision in all respects although significantly differed in its reasoning, particularly with respect to the title claim.
Issues on Appeal and Decision
(i) The “All or Nothing” Title Claim
Having rejected the Plaintiff’s claim for Aboriginal title over the entire Claim Area, the trial judge considered himself bound to reject the title claim to part of the area on a technical point: the Statement of Claim did not seek declarations of title over portions of the Claim Area, and therefore, it would be prejudicial to the Defendants to make such a declaration. In other words, the Plaintiff’s claim was “all or nothing”.
While dismissing the claim, the trial judge nonetheless observed the evidence warranted a finding of Aboriginal title over certain tracts of land.
The Court of Appeal refused to take the same narrow view of the Plaintiff’s claim, noting BC courts take a “functional” approach to pleadings that overlook minor flaws unless prejudice arises. Finding no prejudice, the Court of Appeal concluded that the Plantiff’s claim was not “all or nothing” and therefore went on to consider the Plaintiff’s claim for title over part of the Claim Area.
(ii) Test for Aboriginal Title
Although the Court of Appeal rejected the “all or nothing” conclusion of the trial judge, it noted that at trial, the Plaintiff had argued its title claim based on a “territorial theory” – asserting that title could be established by showing the movement of the Tsilhqot’in through the territory in various patterns (while attempting to repel others who sought to use the land) at the time of sovereignty.
The Court of Appeal ultimately rejected the Plaintiff’s “territorial” claim since it was premised on the wrong legal test for proof of Aboriginal title. Instead, the Court concluded “Aboriginal title must be proven on a site-specific basis” (para. 230). Therefore, on different grounds, the Court upheld the trial judge’s dismissal of the Tsilhqot’in’s title claim without prejudice to their right to bring a new (site-specific) claim.
Site Specific Approach to Title
The Court of Appeal observed that the Plaintiff’s claim was clearly territorial, relying on the following evidence: the Tsilhqot’in lived in various encampments in the Claim Area at different times; the Tshilhqot’in hunted, fished and trapped at various places, some of which are in the Claim Area; and on a seasonal basis, the Tsilhqot’in would travel along trails throughout the Claim Area. With a few exceptions, the Court noted there were no definite tracts of land habitually occupied by the Tshilhqot’in at sovereignty in 1846.
The Court of Appeal acknowledged that Delgamuukw did not fully address the quality of “occupancy” required (except that it required exclusivity), but the Court found, relying extensively on recent Supreme Court of Canada decisions,what was contemplated was:
[219] I also agree with the defendants that a territorial claim for Aboriginal title does not meet the tests in Delgamuukw and in Marshall; Bernard. Further, as I will attempt to explain, I do not see a broad territorial claim as fitting within the purposes behind s. 35 of the Constitution Act, 1982 or the rationale for the common law’s recognition of Aboriginal title. Finally, I see broad territorial claims to title as antithetical to the goal of reconciliation, which demands that, so far as possible, the traditional rights of First Nations be fully respected without placing unnecessary limitations on the sovereignty of the Crown or on the aspirations of all Canadians, Aboriginal and non-Aboriginal.
[220] As I read Delgamuukw, Aboriginal title cannot generally be proven on a territorial basis, even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory. I acknowledge that Delgamuukw did not fully address the quality of occupancy that was necessary to support a title claim, apart from indicating that the occupancy must have been exclusive. That said, several passages in Delgamuukw strongly suggest that an intensive presence at a particular site was what the Court had in mind.
[221] In particular, I note that the examples of title lands given at para. 149 of Delgamuukw are well-defined, intensively used areas. The reference to hunting, fishing and other resource extraction activities is coupled with a specific description of the lands so used as “definite” tracts of land. I agree with British Columbia’s assertion that what was contemplated were specific sites on which hunting, fishing, or resource extraction activities took place on a regular and intensive basis. Examples might include salt licks, narrow defiles between mountains and cliffs, particular rocks or promontories used for netting salmon, or, in other areas of the country, buffalo jumps.
Using this approach, the Tsilhqot’in’s claim for Aboriginal title was not sustainable. However, instead of dismissing the claim in its entirety, the Court was of the view the Plaintiff should not be prejudiced for structuring the claim as it was, and declared its dismissal to be without prejudice to the First Nation’s right to pursue future title claims to specific sites.
(iii) Proper Rights Holders
While it is common ground that Aboriginal rights are communally held, identifying the proper rights-holding collective may not be obvious. As the trial judge noted, an individual may simultaneously be a member of “a family, a clan or descent group, a hunting party, a band and a nation”.
The Plaintiff had originally brought the claim for Aboriginal title on behalf of the Tsilhqot’in Nation and the claim for Aboriginal rights on behalf of Xeni Gwet’in First Nations Government (a band and subgroup of the Tsilhqot’in), but in closing arguments asserted both rights and title belonged to the Nation. The Province disagreed, arguing the band held the collective rights as decision-making typically took place at the band level, and not at the Nation level where there was no governing body. In the Province’s view, the lack of political structure at the Nation level provides practical problems in implementing consultation and negotiation should the Nation be declared the rights-bearing community.
Although the Court recognized the practical difficulties raised by the Province, the Court rejected the argument finding a requirement for a central governance structure may devastate claims by groups such as the Tsilhqot’in. With the fluidity of the group’s structure and the limited available evidence, establishing continuity with an historical local group with a clear decision-making structure may prove impossible for Aboriginal claimants (para. 146).
Observing that the proper rights holder should primarily be determined by the Aboriginal collective itself, the Court concluded the evidence in this case supported the trial judge’s finding that the Tsilhqot’in Nation is the proper rights-holder.
(iv) Claim for Aboriginal Rights
The trial judge found the Tsilhqot’in held Aboriginal rights in the Claim Area and that those rights had been infringed by forestry activities permitted by the Province. His finding (set out in his order) was as follows:
4. The Tsilhqot'in people have an Aboriginal right to hunt and trap birds and animals throughout the Claim Area for the purposes of securing animals for work and transportation, food, clothing, shelter, mats, blankets and crafts, as well as for spiritual, ceremonial and cultural uses. This right is inclusive of a right to capture and use horses for transportation and work;
5. The Tsilhqot'in people have an Aboriginal right to trade in skins and pelts taken from the Claim Area as a means of securing a moderate livelihood; [and]
6. Forestry activities, which include logging and all other silvicultural practices, have unjustifiably infringed the Aboriginal rights in the Claim Area.
[cited at para. 250 of the appeal judgment]
Although horses were introduced to North America by Europeans, the trial judge nonetheless found the evidence established the Tsilhqot’in practice of capturing and using horses for work and transportation pre-dated the Tsilqot’in’s contact with Europeans and qualified as an Aboriginal right. Giving deference to the trial judge on the factual findings, the Court of Appeal found no reason to interfere with this conclusion. Similarly, the Court of Appeal upheld the trial judge’s assessment of the Tsilhqot’in’s practice of trading in skins and pelts, finding there was evidence to support the Tsilhquot’in traded to earn a “moderate livelihood” – that is, a low level of commercial activity. (para. 281)
The question of whether these rights were infringed was complex: the Tsilhqot’in were found to hold Aboriginal rights over a large area that had been affected by a complex array of forestry legislation, regulation, licences and grants of tenure. As the trial judge found on the facts that forestry activities had an overall negative effect on hunting and wildlife habitat, the low threshold required to establish a prima facie infringement of the proven Aboriginal rights (more than trivial interference) was met in this case.
In deciding the final question of whether the infringement was justified, the Court of Appeal supported the trial judge’s case-specific approach, observing that although forestry fell within the range of activities that may justify infringement of Aboriginal rights and title, the analysis must be specific to the Aboriginal rights and forestry practices at issue. The court noted:
[331] In this case, the judge found that there was no valid governmental objective for logging in the Claim Area. The judge identified the objectives postulated as justifying the authorization of logging as follows:
[1101] British Columbia appears to argue that the compelling and substantial objectives behind the alleged infringements include the economic benefits that can be realized from logging in the Claim Area, and a need to salvage forests affected by mountain pine beetle for sound silviculture reasons.
The Court of Appeal found no reason to interfere with the trial judge’s conclusion that the government objective in this case was not made out on the evidence in relation to the Claim Area.
Conclusion
A key part of the decision for the future is at paragraph 163:
The courts have frequently emphasized the need for resolution of Aboriginal rights and title issues through negotiated agreements where possible. The trial judge in this case went beyond the ordinary role of the court in attempting to set the stage for a negotiated resolution. Negotiated resolution of issues, however, is not facilitated by uncertainty in the law.(emphasis added)
With respect to future title claims, the Court of Appeal provided specific guidance and clarity on asserting and proof of these claims. The Court rejected the test for proof of Aboriginal title being territorial and confirmed that the test is site specific. This will provide certainty for the future resolution of Aboriginal title claims.
With respect to Aboriginal rights, the judgment confirms that test for proof of the existence of Aboriginal rights is now well settled law and that, once the right is proven on a balance of probabilities, the threshold for showing an infringement of the rights is low. This also provides certainty for the future resolution of claims of infringement of proven Aboriginal rights and makes it clear that once a prima facie infringement is shown, the burden is on the Crown to justify the infringement.
The judgment addresses a number of other issues not specifically considered in this bulletin and warrants a close read. A link to the full reasons for judgment can be found here: William v. British Columbia, 2012 BCCA 285
