Canada: British Columbia Court Of Appeal Recognizes Tsilhqot'in Nation's Aboriginal Rights Short Of Title

Last Updated: August 31 2012

By Paul Seaman and Andrey Shamis

William v. British Columbia, 2012 BCCA 285


In response to British Columbia's approval of a private company's plan to commence logging in an area in the interior of the province in 1989, members of the Tsilhqot'in Nation (the "Tsilhqot'in") initiated an action seeking the recognition of certain Aboriginal rights, a declaration of title over their traditional territory (the "Claim Area") and damages for unjustifiable infringements of rights by the Crown.  The trial occupied 339 court days over a span of nearly five years.  Twenty-four Tsilhqot'in witnesses testified in person and five provided evidence by affidavit.  The parties also presented evidence from experts in the fields of anthropology, archeology, cartography and biology.

The trial judge, the late Justice Vickers, applied the test for Aboriginal title from the Supreme Court of Canada's decision in Delgamuukw v. B.C., [1997] 3 S.C.R. 1010 and held that the available evidence was sufficient to establish title over certain portions of the Claim Area.

Although Justice Vickers decided he could not issue a "formal" declaration of Aboriginal title over areas smaller than the Claim Area due to a technical error in the pleadings, he nonetheless opined that Aboriginal title had been established on the evidence adduced, without prejudice to future claims by the Tsilhqot'in to those areas.

Justice Vickers also declared that the B.C. Forest Act did not apply to Aboriginal title lands and that the Tsilhqot'in have the right to: (i) hunt and trap throughout the Claim Area, and (ii) trade skins and pelts in order to support moderate livelihoods.


On appeal to the British Columbia Court of Appeal, the First Nation submitted that the trial judge erred in declining to issue a declaration that title to the entire Claim Area had been proven and by treating the claim as an "all or nothing" one.  British Columbia and Canada appealed the trial judge's decision to allow the possibility of future claims of Aboriginal title over various smaller portions of the Claim Area.


The Court of Appeal, citing the Supreme Court's decisions in Delgamuukw and R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220 as authority, held that the trial judge erred in law by applying a broad "regional or territorial" standard to the Tsilhqot'in's title claim rather than the site-specific standard required by Supreme Court of Canada jurisprudence.  The Court also opined that broad claims to title made on the basis of a territorial theory of occupation did not fit within the purpose of s. 35 of the Constitution Act, 1982, which is the reconciliation of Aboriginal interests with Crown sovereignty.  The Court instead suggested that reconciliation can be achieved, short of recognizing broad claims to title, by allowing an Aboriginal community to live in traditional locales and to exercise rights to use surrounding territorial land that it cultivated or intensively took resources from but did not occupy. 

The notion of what constitutes "occupation" was a central theme in this case.  In considering competing Aboriginal and non-Aboriginal concepts of occupation, particularly in light of the difficulties nomadic and semi-nomadic Aboriginal communities now have proving the level of site-specific occupation required to establish title, the Court of Appeal commented that this case presented "a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians."

Consequently, the Court of Appeal upheld the trial judge's findings in respect of the Tsilhqot'in's rights to hunt, trap and trade throughout the Claim Area but opined that the legal standard of site-specificity required to found an Aboriginal title claim had not been met.  For this reason, the Court declined to comment on Justice Vickers' holding on the non-applicability of the B.C. Forest Act to Aboriginal title lands.

The Court of Appeal ultimately agreed with Justice Vickers that future title claims by the Tsilhqot'in to smaller and more specific areas within the Claim Area should not be prejudiced, commenting that the test for Aboriginal title has been a complex "moving target" in Canadian law, and the "unique" circumstances of the case led them to conclude that the case should not bar future title claims to smaller tracts of land within the Claim Area simply because the plaintiffs chose to pursue one legal theory over another.

Federal Court of Appeal upholds election of Chief of the Fort McKay First Nation

By Graham Ragan

Boucher v. Fitzpatrick, 2012 FCA 212

On July 25, 2012, the Federal Court of Appeal allowed an appeal from the decision of the Federal Court, which had set aside the April 5, 2011 election for Chief of the Fort McKay First Nation.  

The parties were both candidates nominated for the office of Chief. After a re-counting of the votes, Mr. Boucher was elected Chief with a total of 163 votes, while the Respondent, Ms. Fitzpatrick, received 162 votes.

The Returning Officer interpreted the Fort McKay First Nation Election Code as giving her the power to allow a friend or relative of an incapacitated voter to assist that person in voting. She established a voting procedure permitting incapacitated electors to designate an individual to assist them in marking their ballots.  A total of 6 incapacitated electors were effectively assisted by a person other than the Returning Officer during the April 5, 2011 election.

Following the election, Ms. Fitzpatrick filed a Notice of Appeal under the Election Code seeking an order setting aside the election for the Chief and the Councillors. Ms. Fitzpatrick alleged, among other things, that an elector had illegally voted twice (the second time by marking a ballot on behalf of the incapacitated elector) and that this was a breach of the Election Code that could directly affect the outcome of the election of the Chief.

The appeal was heard by an Appeal Arbitrator.  The Arbitrator reviewed the relevant provisions of the Election Code and concluded that the Returning Officer did not err in her interpretation of the Election Code. He agreed that while the Election Code gives the Returning Officer the power to assist incapacitated electors when so requested in marking their ballots, the Retuning Officer was not the only person that could do so.

On judicial review, the application judge held that the Arbitrator erred in his interpretation of the Election Code. The application judge reasoned that under normal circumstances, electors are required to mark their own ballot, free from any outside influence in the voting compartment. The application judge held that any exception to such principle had to be explicitly stated in the Election Code.  The application judge added that his conclusion was also supported by section 48.1 of the Election Code, which deals with "Persons at voting stations".  In his view this section clearly prohibited an elector's friends or relatives from being present at the voting station, let alone in the voting compartment.

The Federal Court of Appeal interpreted the Election Code as supporting the conclusion that the Returning Officer is not the only person that can be allowed to assist an incapacitated elector.    The Court also noted that the concept that incapacitated electors may be assisted by a friend or relative of their choice in the voting compartment to mark their ballot is well-accepted and is incorporated in Federal and Alberta legislation. 

The Court of Appeal also held that the application judge erred by focussing on section 48.1, giving it too much weight in the overall context.  The Court of Appeal held that the general principle set out in section 48.1 is that only those persons actively engaged in the process of voting should be present at the voting station.  The Court held that it is evident that if a person is permitted to accompany an incapacitated elector in the voting compartment, such person must be at the voting station while the incapacitated elector is "engaged in the process of voting" within the meaning of section 48.1.

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