Canada: British Columbia Court Of Appeal Rejects Broad Claims To Aboriginal Title By First Nation Groups

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.


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.


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.

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.